by Richard McGee
Can tribal employers compel employees to be vaccinated against COVID-19? The answer is yes, with some likely exceptions. Tribal employers start from the premise that the tribe defines the terms and conditions of employment as an exercise of the tribe’s inherent sovereignty. Accordingly, if the tribe mandates vaccines for its employees, that is the tribe’s right as a sovereign nation. The opposite is true as well since the tribe can refuse to make vaccines mandatory for its employees. Outside Indian Country, the answer to the question of whether employers can mandate COVID-19 vaccines is yes as well, with some exceptions. The general rule on this topic is discussed below, followed by the exceptions.
Support for Yes
COVID-19 has been devastating for tribal employers just as it has been devastating for tribal communities, families and citizens. COVID-19 has had a hugely negative impact on tribal enterprises, including gaming. A vaccine that can fight this devastating pandemic will benefit tribes, their governments and the citizens and employees of the tribe.
The federal government’s Centers for Disease Control promotes vaccines as beneficial for employers and employees. According to the CDC, the benefits for employers include reduced costs by reducing time missed from work due to illness and that generates improved productivity. Improved productivity can mean better services provided by the tribal government to its citizens and community. Employers also argue that employer provided healthcare typically covers the cost of vaccines without cost to the employee. Finally, the CDC argues that employees also benefit from less absenteeism, improved health and better morale.
Exceptions to Yes
If the tribal employer mandates a COVID-19 vaccine as a requirement for employees, what are some of the exceptions to consider and what are other issues to evaluate? The following analysis is generated by a review of federal rules that arguably do not apply to tribal employers. The applicability of these federal rules could be impacted by the tribe’s receipt of federal funds, work outside the tribe’s lands or reservation, execution of a gaming compact that requires compliance with certain standards and promises made to employees by the tribal employer.
The federal government’s Equal Employment Opportunity Commission is a federal regulator responsible for interpreting and enforcing certain federal employment laws, and in 2020, it reiterated its 2009 vaccine flu guidance and reengineered it for COVID-19. The EEOC, however, enforces laws that generally do not apply to tribal employers. More specifically, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act do not apply to tribal employers. Nevertheless, in the guidance, the EEOC, citing Title VII and the ADA, declares that a mandatory vaccine cannot be imposed by employers, but recognize the “no” captures a small number of employees raising disability and religious objections. Therefore, the EEOC is saying yes for the majority of employees while simultaneously recognizing limited exceptions. Here is part of that guidance:
An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Here is the point of citing standards that do not generally apply to tribal employers. In evaluating whether a tribal rule is reasonable, citation to the protocols adopted by other sovereigns can provide one measure of reasonableness. Since the federal sovereign allows mandatory vaccinations for most employees, other sovereigns can view that position as support for the reasonableness of that position.
The federal laws promote the use of accommodations as a way to create an exception to a rule or policy. Since vaccinations are a path to safety in the workplace, an accommodation or exception to a vaccination policy might mean substituting the wearing of a face mask for a mandatory vaccination as one example. Disability accommodations might include moving the employee’s workstation, temporarily reassigning the employee, approving a teleworking arrangement, or offering a leave of absence. For COVID-19, religious accommodations likely are the same as the cited disability accommodations. The federal sovereign has a huge body of law that addresses reasonable disability and religious accommodations, and even though the law likely does not apply, can be consulted as a measure of reasonableness.
Verification & Privacy
If a tribal employer requires employees to be vaccinated, the employer will want to receive verification of compliance from employees. Because tribal employers are respectful of their employees, tribal employers adopt policies that require maintenance of medical records in a confidential manner. The tribal employer’s privacy policy likely controls since federal privacy rules included in the ADA likely do not apply to tribal employers and HIPAA is likely not triggered unless the private health information comes directly from the tribe’s hospital or clinic.
Seeking verification directly from a federally funded health care provider, including the tribe’s clinic or hospital, will likely generate HIPAA (Health Insurance Portability
Accountability Act) concerns. Alternatively, by requiring employees to disclose their private health information to the employer, the information is not disclosed by the tribal hospital or clinic.
Practical Considerations
First, tribal employers should consider whether a vaccine policy will be mandatory or voluntary. In addition to human resources and legal, tribal leadership should be consulted on this question. In consulting with tribal leadership, there are
relevant questions to be addressed. Is a vaccine job related and consistent with business necessity? What reasons, if any, will form the basis of an exception (or exemption) to the mandatory policy? How will employees react to the policy? How will employee reaction impact morale and retention? Is it better to encourage vaccinations instead of mandating them? Is that option more aligned with the tribe’s values?
Second, the answers generated by the questions above should be documented in an employee policy.
Third, if there are exemptions to a mandatory vaccination, what is the protocol for seeking and obtaining the exemption?
Fourth, if the tribal employer requires vaccination verification, are there protocols in place to protect employee privacy in medical information? What are the short-term and long-term consequences of refusing to be vaccinated?
Pay
Must employees be paid for the time spent to get a vaccine? The Fair Labor Standards Act, which may or may not apply to tribal employers, requires that employers reimburse employees for expenses incurred on the employer’s behalf, or where the employee is required to spend money for the convenience of their employer, to the extent that failing to reimburse would, effectively, cut into the employee’s FLSA-protected wages. Whether employers will be required to cover some or all of the costs or time associated with getting the COVID-19 vaccine will depend on the circumstances specific to the employee. If the tribe requires the vaccine on the basis that it is job-related and consistent with business necessity, the respectful recommendation is that the employer include the time spent getting the vaccine as hours worked, and cover the cost of the vaccine itself, to avoid a pseudo-deduction to FLSA-protected wages. If the vaccination is voluntary and the vaccine is not arguably job-related and consistent with business necessity, the FLSA may not require treating vaccination time as time worked but there is a generosity argument in paying for that time.
Union Contracts
Under a collective bargaining agreement between a tribal employer and a union, consult the management rights, health and safety, and any other applicable provisions within the agreement that may apply, along with any relevant past practices in effect.
Liability
From the big picture perspective and therefore without discussing every plausible cause of action or scenario, there are probably two liability concerns with a mandatory vaccine policy.
First, under a negligence theory, the employer has a duty to protect its workers, and mandating an employee to be vaccinated unreasonably endangers the employee. By unreasonably endangering the employee, the employer has breached its duty to the employee and is therefore negligent. The second theory focuses on a tribal employer’s alleged failure to respect employee disability, religious and other potential civil rights by mandating the vaccine. Consult with your tribe’s lawyers on this question of liability and in that consultation the analysis may follow this logic.
Under a negligence theory of liability, there is the question of whether an employer mandating a vaccine can be held legally responsible for an employee’s adverse reaction to the vaccine. The argument against a negligence theory is the reasonable basis to believe a vaccine, in most instances, will protect employees. As the argument goes, since the vaccine will protect employees, requiring it cannot be negligent. Moreover, other sovereigns have endorsed vaccines further establishing their reasonableness.
As to the theory that tribal employers may not allegedly grant disability and religious rights to employees, the federal laws that extend those protections likely do not apply. Whether similar tribal laws and policies permit a judicially enforced or other administrative remedy, is a question for tribes to consider after reviewing specific laws and policies. Additionally, there could be other jurisdictional and immunity defenses depending on the facts and circumstances.
The pandemic is serious and deserves a serious conversation regarding the range of options. The best option is a question for leadership with the considered input from elders, managers, human resources and legal.
Richard McGee is a Minneapolis based lawyer with a focus on tribal employment and gaming regulation. He can be reached by calling (612) 812-9673 or email [email protected].