MEMORANDUM

To: The General Public

From: R. Houck, Esquire
Contact: Rhouck at protonmail dot com
Date: May 21, 2021
Regarding: Vaccination Requirements from Private Employers

Legal Memo Regarding Covid-19 Vaccinations

Topics discussed in this memorandum are intended to provide broad, general
information about the law. This memo is not intended to be legal advice. Before
applying this information to a specific legal problem, readers are urged to seek advice
from a licensed attorney.

Subject: Provide relevant legal information and options pertaining to vaccine

requirements from your private employer. Roughly 30% of Americans do not plan to
get a Covid-19 vaccination as of February 2021 according to Pew Research.1

Overview Of Vaccine Requirements– Law & Considerations

As a general rule, a private employer (that is not a government entity, public

university, et cetera) can require a wide array of articles as a condition of employment
or continued employment, however, they must ensure they do not discriminate against
a person’s religious beliefs or medical conditions.

To illustrate the general concept of employment conditions, consider Hooters the

restaurant, or a similar "breastaurant," which requires the waitresses to wear specific
revealing clothing as part of their employment. There is nothing that says a woman
must wear tight orange shorts or a low-cut tank-top, you are certainly free to not wear
such items, however, if you work at Hooters, you are required to wear them. If the
uniform at Hooters were to change, you would be required to wear the new uniform as
well.

Any uniform or workplace dress requirement might be viewed similarly when you
agree to work for a company, they have wide latitude in determining quite a lot about
your autonomy. People who work in call-centers may not be able to use the restroom
on their own accord, they often have pre-determined break-times, and leaving their
desk outside of their specific allowed time may result in "coaching," write-ups, or
negative performance reviews.

1
https://www.pewresearch.org/science/2021/03/05/growing-share-of-americans-say-they-plan-to-get-a-covid-19-
vaccine-or-already-have/

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This is the nature of “at-will employment.” As such, if a private employer wants all of
their workforce to be vaccinated, they can do so, however, they cannot do so by
violating laws in place to protect certain rights.

**The current vaccines being given for Covid-19 are not fully approved. They are
administered under an Emergency Use Authorization granted by the Food and Drug
Administration. Drugs authorized under a EUA have not yet met the full
requirements for final FDA approval, as such, a person may refuse the product per
published FDA guidelines.2 However, this FDA guideline has not prevented others
from being fired for their refusal. This legal question remains unresolved and I would
not rely on the FDA guidelines alone. The remainder of this memo will address the
issues that will remain subsequent to FDA approval.

Current Legal Exemptions

The exceptions to employment conditions are as follows; an employer cannot require

you to do illegal acts, they may not violate the Civil Rights Act, the Americans with
Disabilities Act, state and local Civil Rights laws, Labor Laws, safety regulations, or
other public policies.

If your private employer begins to require vaccinations as a condition of employment

there are currently two primary exceptions under Federal law: the Americans with
Disabilities Act and the Civil Rights Act. If you are exempt under one of these laws,
your employer will then need to make “reasonable accommodations” for you.

Exceptions;
1. Americans with Disabilities Act
a. Reasonable Accommodations
2. Title VII of the Civil Rights Act (Religious discrimination)
a. Reasonable Accommodations

2
Emergency Use Authorization of Medical Products and Related Authorities. Guidance for Industry and Other
Stakeholders. January 2017. Procedural. OMB Control No. 0910-0595. Expiration Date 08/31/2022

https://www.statnews.com/2021/02/23/federal-law-prohibits-employers-and-others-from-requiring-vaccination-
with-a-covid-19-vaccine-distributed-under-an-eua/

https://www.fda.gov/media/97321/download

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The Americans with Disabilities Act

Under the Americans with Disabilities Act, an employer cannot fire you or otherwise
punish you for any medical condition that you may have, but this exception is limited
to your employer making reasonable accommodations (see later).

Such a medical condition could be an allergy to an ingredient or ingredients in the

vaccine. For example, suppose a person is allergic to ingredients that are in both the
Pfizer and Moderna vaccines but that same ingredient is not in the Johnson &
Johnson vaccine, however, being at a high risk of blood clots, the Johnson & Johnson
vaccine is considered unsafe at the moment for the person as well. Such facts would
qualify this individual for a medical exemption to receiving the vaccine. If you are
allergic to something specific, check all ingredient lists.

If you have certain medical conditions, it may be unsafe for you to receive the vaccines,
the CDC has listed certain underlying medical conditions where there is not yet safety
data available for the Covid-19 vaccine:

Those who have had Guillain-Barre syndrome

Those who have had Bell’s palsy
Those with weakened immune systems
Autoimmune conditions 3

When claiming a medical exemption, your employer may require you to provide proof
of the disability in the form of a doctor's note or medical records. Their request for
proof will not violate HIPAA, as discussed later.

Civil Rights Act – Religious Exemption

If you have sincerely held religious beliefs, practices, or observances, that prohibit you
from receiving the Covid-19 vaccination, your employer must make reasonable
accommodations (see later) for your continued employment. The belief must be sincere
but need not be held by any officials in your church or be the mainstream
interpretation among other followers of your religion. It could be your personal
interpretation of scripture and by receiving the Covid-19 vaccine, you would be going
against your religious values.

“Religion” need not be a denomination of any official organized religion; some courts
have held that veganism can be akin to a religious belief for these purposes. Note
courts have also held that very sincere and strongly held medical beliefs do not qualify
for a religious exception and therefore are not covered by Title VII of the Civil Rights
Act.4

3
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/underlying-conditions.html
4
Chenzira v. Cincinnati Children's Hospital Medical Center, 2012 U.S. Dist. Lexis 182139 (S.D. Ohio, 2012)
Fallon v. Mercy Catholic Med. Ctr., No. 16-3573 (3d Cir. Dec. 14, 2017)

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Reasonable Accommodations

Equal Employment Opportunity Commission (EEOC) guidelines state that employers

may prohibit unvaccinated employers from entering the workplace if reasonable
accommodations would not reduce or eliminate the risk of spreading Covid-19 to other
employers or customers.5

To remain compliant with Title VII of the CRA or the ADA, your employer must
provide reasonable accommodations for their employees, but they do not have to go so
far as to create undue hardship for themselves defined as more than a de minimus
cost.

Unvaccinated employees, if viewed as a risk for the company or other employees, may
be required to wear masks or gloves, they may be moved to a different role that does
not interact with customers, they may have their office or desk moved, be placed on an
alternative schedule, or similar.6 When accommodations are too burdensome for the
employer, they may fire the employee but only after they attempted accommodations,
and found the accommodations were too burdensome or none were available.

This is all predicated on the idea that unvaccinated persons will spread Covid-19 to
others, I do not believe the science bears this out, which may become a point of
litigation in the future. Asymptomatic transmission appears to be uncommon, and the
contact necessary to spread Covid-19 appears to be far more intimate than what the
vast majority of workplaces experience. Meaning, an unvaccinated person would not
pose any real risk of spreading Covid-19 while being asymptomatic or in close contact
with others. An employer could simply take the temperatures of unvaccinated persons
to see if they are running a fever and thus symptomatic and able to spread the virus.
Again, this is a factual issue that may be contended in court. The act of taking
temperatures could be the “reasonable accommodation” for the unvaccinated, one
might argue.

The Wall Street Journal calls Covid-19 “highly contagious and deadly,” a moniker that
seems to be less based in science than in political meanderings.7 It appears that many
are making decisions based on headlines and not data while discussing issues such as
the proximity required to contract Covid-19, its fatality rates, and what segments of
the population are affected. The more deadly and contagious Covid-19 is, the more
solid the foundation of vaccine requirements, conversely, if the virus is not as deadly
or as contagious as any other common virus, the foundation to require vaccination or
necessitate accommodations becomes far shakier.

5
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
6
https://www.law.cornell.edu/cfr/text/29/1605.2
7
https://archive.ph/W7JSv

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 HIPAA & More

The Health Insurance Portability and Accountability Act (HIPAA) applies to

healthcare providers, insurance companies, and related healthcare industries (such as
billing companies) only. It is not a general "medical privacy" statute. HIPAA deals
with how medical providers and insurance companies must treat your healthcare
information, however, it does not protect you from an employer or anybody else asking
you if you have been vaccinated or asking for proof of vaccination. It would be a
HIPAA violation if your healthcare provider gave information out to your employer
without your consent, for example. You can of course refuse to provide vaccination
proof to a business, but they could also deny service, in denying you, they do run the
risk of violating your Civil Rights or are potentially discriminating based on a medical
condition per the ADA.

Further, if a company wanted to only serve those who have been vaccinated, they
could ask for proof of vaccination. But by refusing service there could be issues
regarding discrimination against those with medical conditions or religious views. It is
legal for your employer to ask if you’ve been vaccinated and for proof of the
vaccination. There are state laws and orders currently being implemented, this is
discussed later, which may prohibit a person from being asked to prove vaccination
status.

You will likely see businesses boasting that all of their employees are vaccinated, this
is more of a political and public relations ploy than anything. You may even see
businesses putting up signs signaling one way or the other, to me, this is akin to a
business that asks customers to not carry a weapon into their establishment, despite
being in a state that allows for the concealed carrying of a handgun. Again, this is
legal federally with the ADA and CRA exceptions, but may not be legal per state laws
as they develop.

Current surveys indicated that 10% or less of companies are considering a vaccination
requirement as a condition of employment.8 If that number holds, there will be many
employment opportunities not subject to vaccination requirements, as companies are
challenged and run afoul of the ADA and Title VII, I suspect the number to drop, or
companies to “strongly encourage” but not require the vaccinations.

The Occupational Safety and Health Administration (OSHA) has stated that an
adverse reaction to the Covid-19 vaccination that is a condition of employment is a
work-related event. Because OSHA has said they will classify adverse reactions to
mandatory vaccines as work related, they have already received pushback from
employers who want to force vaccines as an employment condition.9 This might cause

8
https://www.bloomberg.com/news/articles/2021-05-05/no-vaccine-no-desk-firms-weigh-whether-to-make-shots-
mandatory [https://archive.is/bMCEv]
9
https://www.enr.com/articles/51691-osha-imposes-new-guidance-for-employer-required-covid-19-vaccines
[https://archive.is/IEvob]

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OSHA to change direction due to political pressure. If you have been injured due to a
vaccination that was required by your employer, contact OSHA yourself to record the
event immediately after. You may also be able to pursue an injury claim against your
employer.10

State Laws in Progress

A majority of states have some sort of pending legislation related to Covid-19

vaccinations. You can find an updated list here of what bills may be moving through
your state’s legislature. These laws, if passed, may provide a statutory shield from
being required to become vaccinated by an employer, or being refused service or entry
into businesses based on vaccination status. Also, check for executive orders coming
from your state's governor, those may not be included on this list.

https://www.huschblackwell.com/newsandinsights/50-state-update-on-pending-
legislation-pertaining-to-employer-mandated-vaccinations

Vaccine Cards & Passports

The Federal Bureau of Investigation has released a public service announcement

instructing people to not buy or produce fake vaccine cards, and not to fill in the
information on an official card that is not correct, that is, do not write your name on a
card if you did not receive the vaccine. The FBI has listed 18 U.S.C §1017 in their
PSA, a federal criminal code that describes using any seal of any department or
agency of the United States fraudulently or wrongfully, illegal, punishable by up to
five years in prison.

The attorneys general of over forty states signed a letter urging Twitter, Shopify, and
eBay, to remove any instances of people selling vaccine cards, or posting information
about manufacturing a fake vaccine card, from their websites.11

Moving forward, we are going to see a state-by-state patchwork of public policies

regarding vaccination and the continued use of masks. Oregon has said there is no
mask mandate for those fully vaccinated but is requiring businesses to enforce this
policy by forcing employees to ask for proof of vaccination of entering customers. New
York state is imposing similar requirements as Oregon, but allowing businesses to
decide how they will treat vaccinated vs unvaccinated customers regarding masks.
Texas and Florida went the other direction, with Texas adopting a policy through an

10
https://www.natlawreview.com/article/osha-releases-guidance-employers-considering-vaccine-requirements
[https://archive.is/WRAMS]
11
https://www.ohioattorneygeneral.gov/Files/Briefing-Room/News-Releases/NAAG/NAAG-Vaccine-Cards-Letter-
FINAL.aspx
https://www.ic3.gov/Media/Y2021/PSA210330
https://www.law.cornell.edu/uscode/text/18/1017
https://abc7chicago.com/covid-vaccine-card-vaccination-fbi-how-to-get-a-fake/10626690/

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executive order that will not allow government entities or businesses who receive
public funding to require proof of vaccination or use any sort of vaccine passport.
Florida has a similar measure as Texas, but goes further, not allowing any businesses
to ask for proof of vaccination in order to allow them to enter without a mask.

The effect of the Oregon policy is that many businesses will likely require a mask for
everybody, regardless of vaccination status, so that they will not be burdened with
asking for proof of vaccination. Businesses can be fined for not complying.12

Employment Contracts

If you have an employment contract with your company that provides you may only be
fired "for cause," and "for cause" is not so broad as to include vaccinations, this may be
enforced against your employer, arguing that not being vaccinated is not sufficient
cause to terminate the contract. If you are seeking new employment and have the
opportunity to negotiate an employment contract, you should use the opportunity to
include such a clause.

If you are a member of a labor union, the union may have already or be in the process
of negotiating with your employer regarding vaccinations. If you are in a union and
have vaccination concerns, especially if others do as well, you should talk to your
union representative to advocate on your behalf.

Notes on Government Authority

The Biden administration has stated it will not likely seek a federal vaccine
requirement. Congress would need to act under the Commerce Clause, and be
potentially restrained by the holding in National Federation of Independent Business
v. Sebelius (The Obamacare Supreme Court case).13

State governments, however, have a long-recognized authority to mandate vaccines

under their Police Powers. A 1905 Supreme Court case called Jacobson v.
Massachusetts and later affirmed by a 1922 case, Zucht v. King, affirms the right of
states to impose a vaccination. Both cases were in regards to smallpox. If states
mandate a Covid-19 vaccine under their Police Powers, citing these two Supreme
Court decisions, a challenge can still be made, by distinguishing between smallpox and
Covid-19. While a "need" may exist in the case of smallpox, the same need may not be

12
https://www.nytimes.com/live/2021/05/19/world/covid-vaccine-coronavirus-mask#vaccine-status-mask-
requirement-oregon [https://archive.is/jwula]
https://www.natlawreview.com/article/goodbye-covid-19-priority-phases-and-tiers-hello-battles-vaccine-passports
[https://archive.is/dneBx]
13
Congressional Research Service. “Legal Issues in COVID-19 Vaccine Development and Deployment.” Updated
November 25, 2020. https://crsreports.congress.gov/product/pdf/R/R46399

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present regarding Covid-19. Smallpox kills around 30% of those it infects, leading to
over 300 million deaths in the 20th century alone.14

The 1905 case and its successor have been cited as justification for mask-mandates,
lockdowns, and shelter-in-place orders, I believe this to be quite a broad reading.15
Primarily it requires considering smallpox and Covid-19 to be a similar threat, to
which I disagree, secondarily, this reading assumes that a financial penalty to not
receiving a smallpox vaccine is similar to being fined or arrested for not wearing a
mask, closing your business, or staying at home. The efficacy of the smallpox vaccine
was proven long before the 1905 decision, whereas the efficacy of facemasks and
lockdowns remains largely undecided and unproven. Further, while there may be a
“rational connection” for requiring masks and lockdowns to stop or slow the spread of
Covid-19, one wonders if stopping something more akin to the flu than smallpox is a
legitimate government interest. No matter your position on covid-19 I believe we can
agree that Covid-19 is not as concerning and devastating as an outbreak of smallpox.

One also wonders if later jurisprudence and reading of the Constitution has any
material effect on former decisions, does the right to privacy as brought forth in
Griswold v. Connecticut (1965) open the door for other unenumerated rights to exist?
Or can that right be extended here? Can the right to medical autonomy supersede a
nebulous and general “promotion of public health?” Is there a penumbra of rights that
may coalesce to form another in this case? As was the case in Griswold? These
concepts and challenges remain to be seen.

Legal considerations such as these are not merely a matter of fact or law, but a
delicate and nuanced rendezvous of both. The law appears to be on the side of those
insisting upon masks, lockdowns, and vaccinations, however, they ignore the factual
analysis that I do not believe supports the position that smallpox or other similarly
virulent diseases and Covid-19 are analogous enough to draw such extensive authority
from their caselaw.

I contend that for Jacobson v. Massachusetts and Zucht v. King to be extended in the
era of Covid-19, then Covid-19 must rise to a similar level of threat posed by smallpox,
a bar I do not believe has been met. If the bar is not met, then that means state
measures enacted under their Police Powers must then not be assumed valid under
Jacobson v. Massachusetts and Zucht v. King but must stand against scrutiny on their
own. The state does not have a high burden to prove, but I’m not even convinced the
state can show mask mandates, for example, are rationally related to the government
purpose of slowing or stopping the spread of Covid-19. Some of these orders, such as a

14
https://www.cdc.gov/smallpox/about/index.html [https://archive.is/7SXWO]
15
https://www.forbes.com/sites/evangerstmann/2020/03/25/are-stay-at-home-orders-
constitutional/?sh=19ccb803104e [https://archive.is/HsRKD]
https://www.mdchhs.com/2020/07/07/the-constitutionality-of-facemasks-and-covid-19/ [https://archive.is/3Yc7U]
https://www.cnn.com/2020/04/10/politics/pandemic-coronavirus-jacobson-supreme-court-abortion-
rights/index.html [https://archive.is/26yMN]

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curfew on liquor, are so baseless, I think even a minimal showing of relationship could
prove difficult for the states if challenged. If they can show a rational relationship, I
am not sure the danger posed by Covid-19 merits a legitimate government interest.
Does our right to operate a business or travel without molestation not raise the level of
scrutiny these measures would receive under judicial review? I do not expect these
arguments to take hold in the current political climate, where the CDC is a political
actor and public policy is determined by headlines more than common observations.
The theories are thus included to highlight the legal and theoretical opposition is
rooted in at least as firm ground, if not more, than the contrary.

Summary & Conclusion

Several of the issues raised herein will likely be litigated, whether or not an employer
can require an employee to take a vaccine that has only been approved for emergency
use is one issue. Another may be what will constitute a reasonable accommodation for
an employee who has not been vaccinated and what actual and factual risk a non-
vaccinated person even poses, or even if an accommodation is necessary for many
employment settings.

If you find yourself in a situation where you are being required to take the Covid-19
vaccination against your wishes, you have a few options. You can appeal to it being
authorized only for emergency use, there have been instances of people fired for not
getting the emergency vaccine, but a legal question may exist per FDA guidelines,
whether or not the guidelines apply to private employers remains to be seen.

You may claim a medical or religious exemption. Perhaps you have an existing
medical condition that poses an unknown level of risk for the vaccination, perhaps you
oppose vaccinations on grounds that they are tested on animals as part of a religious
belief. If you ask for an exception, your employer then must make "reasonable
accommodations" for you, which may not create an "undue burden" for them, but
maybe rather burdensome to you, that must be kept in mind and factored into your
evaluation. If you choose this path, you should contact an attorney so that they can
help you make a fact-specific determination and allow them to be your liaison with
your employer.

From current data, it appears 10% or less of all private employers will be requiring the
vaccine, which leaves many job openings and is good news for the 30% or so of
Americans who do not wish to receive the vaccine. Some states will become protective
of those who do not wish to become vaccinated, others will become quite hostile.

If you would like more information, have questions, or wish to support, contact;

Rhouck at protonmail dot com

Thank you

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