There is a growing consensus among labor and employment lawyers that private sector employers can, with limited exceptions, mandate that their employees get the COVID-19 vaccine as a condition of employment. The federal Equal Employment Opportunity Commission has stated that a vaccine mandate is lawful as long as an employer offers exemptions for persons with disabilities that would be adversely impacted by vaccination and for persons with sincerely held religious beliefs. The US Department of Justice has recently issued an opinion stating that the Food and Drug Administration’s “emergency use authorization” for the vaccine does not prevent employers from establishing a vaccine mandate. The US Supreme Court has decline to grant an emergency review of Indiana University’s vaccine mandate for its faculty, students and staff. Based on guidance from the Centers for Disease Control and the NH Department of Human Services, private sector employers, particularly those in the healthcare field, are mandating that their employees get vaccinated.
That is not the case in the public sector, on which the private sector depends for main taining roads, law enforcement and fire and rescue services. On July 23, 2021, Governor Sununu signed House Bill 220, the “Medical Freedom Act.” The new law prohibits local governments from requiring proof of COVID-19 vaccination “in order to secure, receive or access any public facility, any public benefit or any public service.” The Medical Freedom Act was not based on Constitutional principles. Over 100 years ago, the Supreme Court upheld the right of local governments to mandate smallpox vaccines, holding that “the liberty secured by the Constitution…does not import an absolute right in each person to be at all times and in all circumstances, wholly freed from restraint” and that it is within the authority of government to decide the best course of action to protect public health from the spread of disease.
It is clear that town, cities, and school districts cannot deny the public access to facilities or services based on vaccine status. But does the law prohibit local governments from establishing a vaccine mandate for public employees? Many public employer believe so and have been reluctant to follow the lead of the private sector. But the Medical Freedom Act does not expressly prohibit local governments from conditioning em ployment on vaccine status. A public employee terminated for non-compliance with a vaccine requirement would still continue to enjoy the same access as members of the general public to public facilities and services.
Absent further legislative action, it will be up to the courts to determine whether the Medical Freedom Act was intended to prohibit vaccine mandates for public employees. Until then, New Hampshire may have inadvertently created a situation where employees on whom we all depend to preserve public safety, to maintain the infrastructure, and to educate our children are themselves at a greater risk of contracting and spreading COVID-19 then their private sector counterparts.
Mark Broth is a member of Drummond Woodsum’s Labor and Employment Group and is the Managing Shareholder for the firm’s New Hampshire-based offices. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. Mark understands the impact that labor and employment laws have on people’s lives, and his substantial experience makes him the go-to attorney for “hot issues” that need effective representation and resolution.
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