Washington Vaccine Mandate Results in Lawsuit

In early August, even before the U.S. Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech vaccine, Gov. Jay Inslee announced a vaccine mandate for state employees, as well as workers in healthcare settings. In reaction, the Washington Federation of State Employees (WFSE), a union representing state workers, filed a lawsuit, arguing that the state did not bargain in good faith.

What the Mandate Requires

According to the governor’s announcement, many employees throughout the state must receive a COVID-19 vaccination or be subject to termination. The mandate is directed to state workers but only those in Gov. Inslee’s cabinet agencies. Those in K-12 schools, higher education, and legislative and judicial branches are not affected; however, on August 18, Gov. Inslee approved a separate mandate request from state Superintendent Chris Reykdal that requires all public school K-12 teachers to be vaccinated. The governor’s mandate also applies to workers in long-term care, congregant settings, and medical facilities, and the governor is encouraging all employees to follow the directive.

Soon after the governor’s announcement, Executive Dow Constantine and Mayor Jenny Durkan issued a similar mandate for King County and Seattle city workers.

The mandate stipulates that vaccinations must be completed by October 18. Employees with religious convictions or certain medical conditions that conflict with vaccinations can request accommodations under this new policy. However, those who refuse the vaccine without an approved exception are subject to disciplinary action, including termination.

What the Union Claims

The mandate’s ramifications are subject to bargaining agreements with local unions. The WFSE has stated that it reached out to the state with several concerns regarding the vaccine mandate. These included how the state would make accommodations, if it would have a staffing plan in place during the vaccine process, and how the state would assist with such a large-scale vaccination effort.

However, according to WFSE, the state did not adequately respond to its inquiries and did not provide counter proposals until after the union filed the lawsuit. The governor’s office contends that the union’s accusations are false and plans to explain its actions in court.

It will be interesting to see how the state and the courts resolve this issue, but the lawsuit speaks to a larger issue that legislators and employers are facing. When is it acceptable to impose health regulations on workers? Do vaccine mandates infringe upon personal freedom, or are they necessary for public health?

What the Law Says

According to Washington Department of Health data from August 22, 72.4% of eligible Washingtonians (ages 12 and up) have received at least one dose of the COVID-19 vaccine. It is unclear how many state employees will decline the vaccine mandate and risk losing their jobs. However, there will undoubtedly be workers who would rather resign than be subjected to a mandated vaccine.

Although a mandate may seem extreme, past legal cases support its use. For example, the U.S. Supreme Court ruled in Jacobson v Massachusetts, 197 U.S. 11 (1905), that states do have the authority to enact compulsory vaccination laws. Also, earlier this year, the Equal Employment Opportunity Commission (EEOC) clarified that according to federal law, employers are allowed to require employee vaccinations, as long as accommodations are made for those protected by Title VII and the Americans with Disabilities Act (ADA).

Advice for Employers

If your company is not included in the state mandate, you may still be grappling with a vaccine policy for your workers. In the event that you decide to issue a mandate, be sure you follow EEOC guidance in making accommodations. However, if you are unsure about a mandate, you can still encourage your workers to stay safe by wearing masks, social distancing, watching for symptoms, and getting tested. You can also offer incentives for those to choose to be vaccinated.

Whether you are considering a vaccine mandate or any other policy that affects your personnel, use caution. It is critical that you understand the legal ramifications, but there are other issues to consider. Look at your culture, talk to your people, and determine what best serves them and your business. You can also discuss the matter with legal counsel. At Cotney Attorneys & Consultants, we can help you review your situation, explain your options, and help you take the appropriate action to protect your company and your workers.