EMPLOYERS MAY NOT MANDATE COVID VACCINATIONS IN CALIFORNIA

May California employers mandate COVID vaccinations for employees?  The short answer is no.

California’s constitutional right to privacy, combined with California’s unfair competition law, prevent an employer from mandating COVID shots as a condition of continued employment.  Here is the analysis:

Article I, Section 1 of the California Constitution says this:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

The inalienable right to personal privacy in California includes “the right of individuals to determine what is done to their own bodies.” This legislative policy is made clear in a California statute entitled “Protection of Human Subjects in Medical Experimentation Act,” which says this:

The Legislature hereby finds and declares that medical experimentation on human subjects is vital for the benefit of mankind, however such experimentation shall be undertaken with due respect to the preciousness of human life and the right of individuals to determine what is done to their own bodies. [1]

This language underscores the inherent tension between medical experimentation, on the one hand, and the right of all people to determine what is done to their own bodies, on the other.   Because it is a declared public policy of California, the right to determine what is done to ones own body is a recognized privacy right under the California Constitution, Section I, Article 1.

And under the unfair competition laws of California, an employer may not violate the privacy rights of its employees as a condition of continued employment.[2]  This means if an employer tells California employees they must take an experimental COVID shot—effectively telling employees that they no longer have the right to determine what is done to their own bodies—as a condition of continued employment, an employment violation is triggered, for which injunctive relief and damages are available under Business & Professions Code §17200.  Employers who attempt to mandate COVID vaccinations will violate this law.

FEDERAL LAW

An employer’s mandatory vaccination requirement would also ignore the requirements of  the Federal Food and Drug Act, 21 USC §360bbb-3(e), for informed consent—

(II) of the significant known and potential benefits and risks of each of the experimental COVID vaccinations and of the extent to which such benefits and risks are unknown; and

(III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.

Employees have standing to sue under this federal statute since they are “individuals” to whom the mandatory COVID vaccinations would be administered.  It is established law that potential harm from forced exposure to dangerous food products or drugs is a risk that confers Article III standing to private litigants.[3]

UNKNOWN RISKS

Little is actually known about the short and long term risks and benefits of each of the COVID vaccinations.  Alarmingly, some recent studies suggest that the risks of COVID vaccinations may far outweigh the benefits.  For example, data suggest that at least 3,000 deaths in US may have been caused by a COVID shot. The HHS VAERS Dataset suggests that number may be much, much higher.  Other evidence suggests a direct link between COVID shots and blood clots, myocarditis and vaccine-induced immune thrombotic thrombocytopenia.  At minimum, until these risks and benefits are better understood and resolved, no employer may mandate COVID vaccinations.

REASONABLE ACCOMMODATION

Is there a middle ground between an employee’s right to privacy and an employer’s need to provide overall safety in the workplace?  Yes–there is always a middle ground to be found in cases involving individual rights vs. collective rights.  Finding the middle ground is what constitutional questions always involve, at both the state and federal levels.

And if reasonable accommodations can be made for non-vaccinated people in all other sectors of society—professional sports, restaurants, bars, subways, churches, and retail stores—can a company not do the same for its employees?  California law requires no less.

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[1] Calif. Health & Safety Code, CHAPTER 1.3. Human Experimentation [24170 – 24179.5].

[2] Wilkinson v. Times Mirror Corp., 264 Cal.Rptr. 194, 206 (Cal. App. 1989). “Unfair competition under Business & Professions Code §17200 encompasses anything that can properly be called a business practice which at the same time is forbidden by law.”

[3] See, e.g., Baur v. Veneman, 352 F.3d 625, 632 (2d Cir.2003)

employers may not mandate COVID vaccinations