NH attorneys say there are few restrictions on mandating Covid shots

It’s a short conversation when workers call employment attorney Jon Meyer asking if their employer can require a Covid-19 vaccination and fire them if they refuse. With very few exceptions, the answer is yes — regardless of arguments that doing so is illegal until the vaccines get final approval from the Food and Drug Administration.

“Whether the FDA approval is emergency or final is completely irrelevant,” said Meyer of Backus, Meyer, & Branch in Manchester. “The fact that you have a right not to take a vaccine would not be a reason why a private employer could not fire you.”

More New Hampshire employers are considering mandating Covid-19 vaccines as immunizations lag and the Delta variant pushes Covid cases, hospitalizations and deaths up. Dartmouth-Hitchcock announced this week it’s mandating vaccinations for its 13,000 employees by the end of September. The New Hampshire Hospital Association has asked all healthcare providers to do the same. Employment lawyer Jim Reidy of Sheehan Phinney, who works with employers, heard from four clients on Thursday alone asking about the legalities of mandates.

The restrictions on employers who want to mandate Covid-19 vaccinations are few.

Most common are requirements that employers provide “reasonable” accommodations for certain medical conditions and “sincerely held” religious beliefs. For the latter, it isn’t enough to say your faith relies on the Holy Spirit for healing or cite a Bible passage suggesting the vaccine is poison, something employment lawyer Beth Deragon at Pastori Krans has seen.

Reidy and Deragon said that, in order to qualify for a religious exemption, the person must belong to the congregation and cite an opposition that is part of the church’s doctrine. And those who ask for a religious accommodation must sign an affidavit that their claims are true.

There is one additional restriction in New Hampshire. A new state law prohibits state, county or local governments from requiring employees to be vaccinated, except at the state hospital, county nursing homes or other government-run medical facilities.

The state Department of Health and Human Services, which runs the state hospital and Glencliff Home for the Elderly, is not currently mandating vaccines for its healthcare workers. Asked if that would change, spokeswoman Laura Montenegro said in an email, “We are reviewing our current vaccination level at our facilities, and that information will inform our decision-making.”

Judicial rulings

Since Covid-19, there has been a third exemption requested.

The “emergency use authorization” given to the Pfizer, Moderna and Johnson & Johnson vaccines requires recipients to be informed they have “a right to accept or refuse the vaccine.” Federal authorities have interpreted that to mean employees can refuse the vaccine, as in it won’t be forced upon them, but can still be fired if they refuse.

The U.S. Justice Department issued an 18-page brief last month detailing the history of the emergency use authorization (it was first proposed by President George W. Bush) and analyzing Congress’s intent in passing it as part of a package called Project BioShield.

The department concluded the “accept or refuse” language is a requirement to inform recipients of their rights, not a prohibition against firing them if they refuse and don’t qualify for an exemption.

The U.S. Justice Department brief cites a 2021 court decision in which a judge came to the same conclusion, ruling a vaccine mandate is not coercive because it provides employees who refuse a vaccine another option. “She will simply need to work somewhere else,” the judge wrote.

Reidy said judges who’ve presided over other vaccine mandate challenges have ruled similarly.

Like Reidy, Deragon has heard this objection raised.

“It seems to me that there is a group of people who say this emergency authorization means that you can’t mandate the vaccine,” Deragon said. “I don’t quite see that, given federal guidance regarding vaccination.” Among that guidance is the U.S. Equal Employment Opportunity Commission affirmation of the right to mandate a Covid-19 vaccine.

Meyer put his legal analysis this way: “These are arguments that sound good on social media,” he said, but don’t have any legal merit.

The lawyers said the challenge for employers is not issuing a mandate but enforcing it legally.

“If employers say everyone must be vaccinated without providing those accommodations, that’s a big problem,” Deragon said.

Meyer said employers with unionized employees may not be able to mandate a vaccination without making it part of contract negotiations. And Reidy said employers must treat all employees the same and not, for example, bend the rules for valuable employees who say they’ll stay if they can be excused from the vaccine mandate.

‘There is a group of people who say emergency authorization means that you can’t mandate the vaccine.

I don’t quite see that, given federal guidance regarding vaccination’ and EEOC affirmation of the right to mandate a Covid-19 vaccine.

— Beth Deragon, Pastori Krans attorney