COVID Vaccine Mandates for EMS: A Legal Roundtable

Editor’s note: As this print issue of EMS World went to press, the federal government issued two new mandates regarding COVID-19 vaccinations for American workers. OSHA’s new emergency temporary standard for employees with 100 or more employees requires vaccination or testing. That rule will not apply to EMS agencies operating in healthcare settings when they are covered under the previous healthcare emergency temporary standard issued in June. The new standard from CMS applies to healthcare facilities certified under conditions of participation that require all staff to be vaccinated. This does not apply directly to EMS but may apply to agencies that serve nursing homes, hospitals, and other facilities covered by the new rule.

On November 30, a federal district court in Louisiana issued a nationwide preliminary injunction against the CMS mandate. This temporarily stopped implementation of the CMS mandate until there is a final decision on the merits of the lawsuit challenging it or further action by the court.

President Joe Biden’s COVID-19 action plan, which includes mandatory vaccines for agencies participating in federal healthcare programs such as Medicare and Medicaid, is expected to encompass EMS operations. EMS World asked three attorneys with experience in the emergency medical services field to discuss vaccine mandates and their impact on the industry. 

They are:

• John K. Murphy, JD, PA-C, MS, EFO, of the Murphy Law Group/M2 Resource Group and a retired deputy fire chief in North Bend, Wash.; 
• Kevin J. Fairlie, Esq. of Fairlie Law in St. Louis, Mo.; and
• Stephen R. Wirth, Esq., EMT-P, founding partner Page, Wolfberg & Wirth. 

All attorneys’ comments are for informational purposes only and should not be construed as legal advice.

EMS World: Where have we seen vaccine mandates already for EMS providers? Have they generally been legally sound within their state frameworks? What resulting issues have been raised? 

Fairlie: Once vaccines became available, the earliest mandates came from private employers making vaccination a condition of employment. The first were hospital-based systems. Houston Methodist Hospital in Texas made national headlines as one of the first employers to make vaccination mandatory, setting a June 7 deadline for all employees to be vaccinated. Many hospitals and other healthcare entities waited for the FDA to provide full regulatory approval before mandating vaccination for their workforces.

A significant legal precedence holds that vaccine mandates are legal as long as they are not discriminatory in nature. Any mandate should allow for exemptions related to the ADA and Title VII of the Civil Rights Act. Title VII requires reasonable accommodation of an employee’s or applicant’s sincerely held religious belief absent undue hardship on the employer.

Murphy: The United States has a history of pandemics: the Spanish Flu, polio, influenza, and others. All the pandemic events have been resolved with masking, quarantine, and immunizations. In general there was a reduction in morbidity and mortality with citizens complying with preventive mandates. 

This particular issue has polarized this country and certainly public safety responders. It is interesting this issue has become so politicized where in all states, K–12 school grades require mandatory immunizations for children, with some exceptions for medical or religious reasons. There is some pushback from parents, but in general all school systems have held the line on mandatory immunizations for school-age children.

In Washington state Gov. Jay Inslee issued a vaccine mandate for state workers—including healthcare workers, inclusive of anyone holding a medical certificate issued by the state—under his power to declare emergency proclamations. There is a big pushback from some state employees filing court action to prevent this mandate from taking effect. A negotiated settlement between the governor’s office and the state employees’ union created carve-outs for retiring employees and others. 

The mandate also affects state-certified healthcare providers, including firefighter-paramedics, EMTs, and first responders holding such a certificate. In all states emergency response personnel are certified or licensed by the state at some level. Mandates or lack thereof affect the health of the provider and the patients they are helping. 

There is a moral if not legal obligation to protect your patient under the medical doctrine of primum non nocere—first do no harm. It applies to the provider as well in taking precautions to prevent the transmission to their patients, each other, or family members of this preventable disease. 

Wirth: We’re seeing more EMS agencies mandating the COVID-19 vaccine, though that is still the exception rather than the rule. Most EMS agencies focus on voluntary compliance measures to encourage their staff to get vaccinated. 

Hospital- or health system-operated EMS services seem to be more likely to mandate vaccination than other types of EMS agencies, at least up to this point, but we don’t have good statistics on that. We have not seen many private ambulance services require vaccination yet. As things evolve more people are coming to accept this vaccine as necessary. I think you’re going to see more EMS agencies of all types—private, nonprofit, government, and hospital-operated—get on board to mandate it.

The law clearly supports EMS employers mandating vaccines, especially since we are in the world of healthcare, and patients’ lives are at stake. Under the “at will” employment doctrine, employers have significant freedom to mandate employees follow their policies and directives, especially when those requirements relate to the business needs and safety interests of the company, its employees, customers, and patients. 

In one of the first lawsuits challenging a healthcare employer requiring vaccination (Bridges v. Houston Methodist Hospital) in June, a group of healthcare workers challenged the vaccine requirement after they were terminated for refusing to be vaccinated, claiming they were wrongfully terminated and coerced by their employer to be vaccinated or be fired. In tossing out the suit, the judge basically said employees had a choice: Either follow the rules established by the employer or work somewhere else where the rules are more to their liking. 

Vaccine mandates by government entities typically fall within the realm of properly executed police powers with respect to not only requirements that local and state governments may set for their employees—like public agency EMS staff—but also for the citizenry at large. 

Regarding unionized EMS employees, the law is evolving, as requiring employees to be vaccinated is such a novel area of labor law. Unionized EMS agencies should consult with labor counsel experienced in union issues before implementing a mandatory vaccination requirement. 

Murphy: In the state of Washington, the governor indicates he is well within the authority of the state law to enact such a declaration, although we will see how the state courts rule on the legal challenge, and there will possibly be a Supreme Court ruling over time. 

Inslee is applying one available legal tool for increasing vaccination rates: for governments to require vaccination. Under the United States’ federalist system, states and the federal government share regulatory authority over public health matters, with states traditionally exercising the bulk of the authority in this area pursuant to their general police power. 

This power authorizes states, within constitutional limits, to enact laws “to provide for the public health, safety, and morals” of the states’ inhabitants. In contrast to this general power, the federal government’s powers are confined to those enumerated in the Constitution. 

The Supreme Court ruled on the validity of mandated immunizations in a 1905 ruling of Jacobson v. Massachusetts. It upheld a state law that gave municipal boards of health authority to require the vaccination of persons over the age of 21 against smallpox, determining the vaccination program had a “real [and] substantial relation to the protection of the public health and safety.” 

In doing so, the court rejected an argument that such a program violated a liberty interest that, under more modern jurisprudence, the plaintiff might have asserted as a substantive due process right. 

The courts have reviewed other cases after Jacobson of similar substance. The Supreme Court has recognized that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment” under the 14th Amendment. However, in a pandemic individual rights may be set aside for the greater good of the population. 

Local public health entities play a role in these decisions exercising their rights to protect the public’s health and have been an active participant in vaccination mandates and supporting such immunization programs. 

Is compliance with requirements working? Any evidence of mass resignations?

Fairlie: They appear to be largely working, although there is evidence of some resignations. The Indiana University Health System, which implemented a mandatory vaccination policy for its employees, had 125 resignations out of a total workforce of close to 36,000 (0.3%).

Wirth: Some healthcare workers in Texas and Massachusetts have picketed against vaccination, but we have not heard of any such organized protests in EMS. We have heard some rumblings since the president’s order, especially in rural areas where there may be less compliance with voluntary vaccination programs. 

EMS is not a well-paid profession, and we are in the midst of an EMS staffing crisis where EMS agencies can’t afford to lose anyone. Any mandatory vaccination program should be implemented cautiously and phased in where possible, first encouraging voluntary vaccination with education and other incentives. 

With all the stresses EMS employees have been under with COVID-19, civil unrest, and greater concerns for health and safety overall, some EMS providers nationwide are calling it quits. Will mandating vaccines make it even more difficult to recruit and retain EMS staff? EMS agency directors we’ve spoken to say they’ve had very high participation by their staff with their voluntary vaccination programs. 

Murphy: [In Washington] a majority of emergency responders (and state workers) are vaccinated, with a number of holdouts threatening not to receive the vaccination in the face of termination. Fire departments across the U.S. and in Washington state are seeking resolution to the impending mandates in spite of the pending litigation through memoranda of understanding or other negotiated means. 

The International Association of Firefighters and the International Association of Fire Chiefs are generally supportive of vaccinations, but the mandating of such immunizations leaves some room for deliberation. 

Does this coming federal mandate appear legally sound? What challenges do you anticipate? Are there ways it might be changed or improved? Should it even exist at all?

Fairlie: President Biden directing the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard to require all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly is getting the most attention. The action most likely to impact EMS was the announcement that CMS will require COVID-19 vaccinations for workers in healthcare settings that receive Medicare or Medicaid reimbursement, which nearly all EMS organizations do. 

We will certainly see numerous legal challenges to the mandates, but there is a long history of courts upholding similar mandates.

Wirth: Most legal authorities say the federal mandate is on solid legal ground. This country has supported mandatory public health measures since our beginning. George Washington even required troops in the Continental Army to be inoculated against smallpox, which in 1777 was devastating the country and his troops. Ironically, some would argue that Washington’s mandatory inoculation program was a major factor in winning the Revolutionary War, which gave birth to the very freedoms those opposed to the COVID-19 vaccine are espousing today!

The federal government’s broad authority to regulate interstate commerce has given us many federal laws that apply across the country, like the Occupational Safety and Health Act, which permits the federal government to regulate important safety matters within the workplace through OSHA. No doubt there will be legal challenges to a mandatory vaccination requirement OSHA will issue, but it is likely any federal mandates requiring vaccinations will be upheld, particularly if the requirements allow for reasonable and limited exceptions.

By and large, exemptions are going to be rather limited for EMS employees who refuse the vaccine, especially those with direct patient contact. But EMS employers need to be prudent and always consider reasonable accommodations for employees with medical conditions and religious beliefs that would prevent them from being vaccinated. However, EMS employers do not have to agree to any accommodations if those accommodations would not eliminate a direct threat the employee may pose to himself, patients, or others in the workplace, or if allowing the accommodation would pose an undue burden on the employer. 

The law is clear that you don’t have a constitutional right to harm others—and the current state of the science indicates that not obtaining a COVID-19 vaccine may well harm others by increasing the spread of a disease that has dire consequences for our entire society. Unvaccinated healthcare workers are even more likely than most other employees to spread the disease to others, especially the elderly and medically vulnerable, where the death toll due to COVID-19 has been the highest. 

At the local and state levels, what should go into crafting vaccine and vaccine mandate policies that are legally sound and maximally protective?

Fairlie: To survive a legal challenge, any mandate should not be discriminatory in nature and should provide for exemptions related to the ADA, Title VII, and medical reasons. 

Murphy: As a healthcare provider and retired deputy chief, I wholeheartedly support vaccines for these pandemics, and if compliance is problematic for whatever reason, mandated vaccines are acceptable. Under OSHA the employer must create a safe and healthy workplace. 

Wirth: Certainly, any policy needs to be applied evenly and cannot be discriminatory. The policies should be crafted in a way so that employee requests for medical or religious exemption are reasonably considered. The employer needs to engage with the employee in an interactive process to discuss these requests and consider reasonable accommodation. 

In most cases the law will support an EMS employer that denies these requests if accommodating the request poses an undue burden on the employer or if the employee would pose a direct threat to the health and safety of coworkers and patients. The key is to document these discussions with the employee and try to work out some accommodation for the employee if feasible, such as transfer to another position that does not involve patient care contact. Each case is fact-specific, so EMS agencies should consult their legal counsel before taking any adverse action against an employee who refuses to be vaccinated. 

EMS agencies deal with very vulnerable patients, such as the elderly and patients with multiple medical conditions. The need to protect these vulnerable segments of our population gives EMS agencies strong support for requiring COVID-19 vaccines, even without any legal mandates. At the end of the day, we have a moral obligation to protect our patients, our coworkers, and the communities we serve in the most effective way possible. Fully vaccinated EMS providers is one way we can do that during this public health emergency.   

Carol Brzozowski is a freelance journalist and former daily newspaper reporter based in South Florida. Her work has been published in more than 200 media outlets. 

Sidebar: Crafting Your Policy

Any department policy should cite the pertinent local rule, the federal mandate for immunizations, whom it affects in the organization, and create exemptions for those requiring them. Exemptions must comply with any ADA accommodation requested or a review for a religious exemption with an honest policy of review of these requests. The review standard must be ironclad, as there will be a probable legal challenge if the accommodation is not or cannot be made or the exemption is not approved. 

The policy distributed to employees should reference the religious exemption and how it provides an exception to the mandatory vaccination policy and include any relevant definitions. Specifically, the policy can explain that a sincerely held religious belief is a belief that can be either theistic or a moral and/or ethical belief as to what is right and wrong, but both are acceptable if they are sincerely held. 

The policy should also state the employer’s process for handling exemption requests and plainly explain the process is one that is interactive between the employee and the human resources department or a member of the organization well-versed in the law and rules applying to exemption requests. The results of this process will be considered on a case-by-case basis by a reviewer who should be named in the policy.

The policy should inform employees that the law requires an employer to reasonably accommodate an employee’s religious beliefs or practices or any medical exemptions unless doing so would cause an undue burden on the operations of the employer’s business. 

Finally, an employer does not have to accommodate an employee’s religious beliefs or ADA accommodation if the accommodation is costly, infringes on other employees’ job rights or benefits, compromises workplace safety, decreases workplace efficiency, or requires other employees to do more than their share of potentially hazardous or burdensome work.

—John K. Murphy, JD