W. Va. Attorney General Opines Against Vaccine Mandates, Vaccine Passport Requirements

From a West Virginia Attorney General's opinion handed down two weeks ago, but just posted on Westlaw, the conclusion:

[A] law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State's constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of "state" government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.

Likewise, a private employer's mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious-or disability-based objections.

Additional steps can and should be taken by the Legislature to ensure that individual liberty interests are protected. The Legislature could:

• Preclude vaccine mandates for some or all employees;
• Bar governments from imposing vaccine passport requirements or bar such passport requirements outright;
• Ensure that employment-related policies contain, at a minimum, exceptions for those with religious objections and other objections, such as those of a medical or conscientious nature; and/or
• Implement a religious or conscientious objector exception for compulsory school vaccinations.

"In view of the broad notions of individual liberty and security which underlie our sense of freedom, potent constraints on overreaching governmental intrusions are appropriate." As many other states have already recognized, an anti-passport, anti-mandate law could helpfully serve as one such constraint—all at a time when individual liberty has too often fallen by the wayside. We strongly implore the Legislature to act.

And here's more analysis; I would take a different view myself on many of these issues (I think broad vaccine mandates and vaccine passport rules would be constitutional and wouldn't violate federal law, so long as they have suitable medical exemptions), but I thought this was interesting and likely to be important, so I'm passing it along:

[I.] A Blanket Law Requiring All State Employees To Obtain the COVID-19 Vaccine Contravenes the West Virginia Constitution and Conflicts With Other State and Federal Laws.

No West Virginia authority specifically addresses whether, under our constitution, a state employer can mandate that an employee be vaccinated as a condition of employment. Our analysis concludes, however, that such a mandate should be held unconstitutional.

Jacobson v. Massachusetts (1905) alone canot provide the answer. As one federal court recognized, "Jacobson predated the modern constitutional jurisprudence of tiers of scrutiny, was decided before the First Amendment was incorporated against the states, and did not address the free exercise of religion." Agudath Israel of Am. v. Cuomo (2d Cir. 2020). Decided the same year as the now-repudiated decision in Lochner v. New York (1905), the case seems out of step with our country's present understanding of the Bill of Rights. Extending it too far could lead to disastrous results— as demonstrated by the U.S. Supreme Court's use of Jacobson to justify forced sterilization in one infamous case. See Buck v. Bell (1927) (citing Jacobson and holding: "The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.").

If a court were to apply the so-called "autonomy cases" to any mandate case, then the court could apply strict scrutiny to the challenged mandate. Rather than relying on the permissive Jacobson standard, strict scrutiny focuses more on the individual liberty and autonomy interests at stake. "[I]t is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic." Calvary Chapel Dayton Valley v. Sisolak (2020) (Alito, J., dissenting from denial of application for injunctive relief). And "Jacobson hardly supports cutting the Constitution loose during a pandemic." Roman Cath. Diocese of Brooklyn v. Cuomo (Gorsuch, J., concurring). But in many respects, some have incorrectly read it to do just that. See id. ("Why have some mistaken this Court's modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? … [W]e may not shelter in place when the Constitution is under attack. Things never go well when we do."). This analysis suggests that any state-based vaccine-related mandate should be subject to more stringent scrutiny than Jacobson applied.

A broad state-employee mandate—especially one without exceptions—would not survive strict scrutiny, if for no other reason than the mandate's overbreadth and lack of tailoring. "Stemming the spread of COVID-19 is unquestionably a compelling interest." Yet a mandate for all employees to be vaccinated is not narrowly tailored to achieve that interest. Most obviously, "there are many other less restrictive rules that could be adopted to minimize the risk." Remote work, social distancing, frequent testing, altered shifts, and similar mechanisms are now familiar tools to limit spread of COVID-19; they stem the spread with less of an imposition on bodily integrity. Public information campaigns and the similar initiatives in place serve the State's apparent interest in encouraging its employees to obtain the vaccine. At least without legitimate legislative findings describing why those other methods are insufficient, a broad mandate would likely fail constitutional review.

Also, a mandate fully embracing those who have had COVID-19—and who therefore may possess some natural immunity already—may be overbroad for the same reasons. See United States v. Arencibia (D. Minn. 2021) (noting how an individual's prior infection with COVID-19 "provide[d] him with some natural immunity and lessen[[ed] his risk of re-infection"). Although data is still developing, research suggests that those with natural immunity may enjoy the same—or even greater— levels of protection that those who are vaccinated. See, e.g., Faye Flam, Vaccines Versus Covid-19: The Great Immunity Debate, WASH. POST (Sept. 7, 2021), available at https://wapo.st/3lcyyP6 ("People who had two Pfizer shots were about 27 times more likely to get symptomatic Covid-19 and eight times more likely to be hospitalized than were people who'd been infected."). Insisting that persons who already enjoy a high level of protection against the disease to obtain an additional level of protection is not the least restrictive means of achieving the State's interest in advancing public health. See, e.g., Chris Burt, George Mason Relents, Grants COVID-19 Medical Exemption to Professor, University Business (Aug. 17, 2021), available at https://bit.ly/2X8Ez7z (describing settlement of litigation brought by law professor with natural immunity against his employer).

If the State were to proceed with a mandate anyway, then the burden would fall on the State to show why the alternative mitigation measures or a more circumscribed mandate would not be as effective as a broader, universal mandate for state employees. Carrying that burden will be difficult for the State to do, especially if new variants challenge the effectiveness of vaccines, more individuals acquire long-lasting natural immunity, and state entities become used to life with limited mitigation measures in place.

In summary, a mandate that all state employees obtain a COVID-19 vaccine as a condition of employment offends the constitutional right to bodily integrity and personal medical decision-making.

Beyond the bodily-integrity issue, a wide-ranging state-employee mandate lacking any religious exemption would offend our constitution's guarantee of religious freedom. "Texts and decisions of appellate courts dealing with the fundamental nature of religious liberty are almost without limit." As the U.S. Supreme Court explained long ago:

"We are a religious people whose institutions presuppose a Supreme Being. … [The State may] respect[] the religious nature of our people and accommodate[] the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe…. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."

Zorach v. Clauson (1952).

Employment Division v. Smith (1990) stands apart from principles like these, and it does not adequately protect the free exercise of religion. Given the direction of the Court, however, it is conceivable, if not likely, that the Smith test will be buried soon—at least in this State. And once Smith is gone, the strict-scrutiny standard should apply in any free-exercise challenge, too. Once that happens, the tailoring problems already described would defeat the law— particularly as religious objectors would represent only a subset of state employees.

Even if the test in Smith were to survive, two other significant problems exist for a mandate in the religious sphere. For one thing, if a mandate provides for a medical exemption (as most every vaccination mandate now in place does), then that mandate should no longer be called "generally applicable." At the same time, exempting religious objectors would not necessarily defeat the objective of reaching a high enough level of immunization to achieve herd immunity if national rates hold. See Seither R. McGill, et al., Vaccination Coverage with Selected Vaccines and Exemption Rates Among Children in Kindergarten - United States, 2019-20 School Year, 70 MMWR MORB. MORTAL. W'KLY REP. 75 (2021) (showing an average non-medical exemption rate of 2.5% from kindergarten compulsory vaccinations). For another thing, this situation appears to present a classic "hybrid rights" case. Free exercise is at stake, but so, too, is bodily integrity. We cannot say with certainty whether the Supreme Court of Appeals of West Virginia would adopt the "hybrid rights" model that has so divided federal courts. But given that the Court has never spoken to the issue, it is at least plausible that the Court may embrace it.

Accordingly, if the State or state actor does not offer any religious exemption to a mandate that State employees be vaccinated, then such a mandate violates the West Virginia Constitution's guarantee of religious freedom.

Of course, the problems of a state-employee vaccine mandate go beyond the aforementioned analysis; additional challenges to such a mandate are likely to arise under federal and state law.

First, a mandate requiring vaccination under penalty of dismissal could be subject to a claim of disability discrimination. If an employee cannot get a COVID-19 vaccine because of a disability, and the State then dismisses him for it, then that dismissal could violate both the WVHRA and the ADA. An employer could find it hard to establish a "direct threat" on these facts given that many employees in this State have worked in the office without mandatory vaccines for several months. Even if the State can establish that a particular employee's unvaccinated status poses a "direct threat," then reasonable accommodations—such as the mitigation measures described above—would still seem to be available to reduce or eliminate that threat. For this reason, the Equal Employment Opportunity Commission ("EEOC") counsels that "an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis." EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws § K.5 (updated May 28, 2021), available at https://bit.ly/3zQ0COB ("EEOC Guidance").

Second, the State could unwittingly engage in religious discrimination if it requires all employees to be vaccinated without exception. An employee objecting to a vaccine based on bona fide religious grounds would be entitled to a reasonable accommodation. And any religious belief or practice would be enough to compel the employer to offer those accommodations, so long as the cost is insubstantial to the employer. The employee cannot insist on any specific form of accommodation. But where an employee raises a valid religious objection, and some reasonable accommodation is available, that accommodation must be offered.

Third, the State could face a disparate-impact discrimination claim. Given that disparities in vaccination rates among racial and ethnic populations have persisted, the State could face disparate-impact claims from members of those protected classes should a mandate be implemented. See Nambi Ndugga, Latest Data on COVID-19 Vaccinations by Race/Ethnicity, Kaiser Family Foundation (Sept. 9, 2021), available at https://bit.ly/2Vp7542 (providing data concerning disparities among vaccination rates); see also EEOC Guidance at K.1 ("[E]mployers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact. … [B]ecause some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.").

All together, these other state and federal laws confirm that an unmitigated law mandating that all state employees be vaccinated is ill advised and unlawful.

 

[II.] A Blanket Law Requiring All Public or Private Establishments To Demand That Patrons Present a "Vaccine Passport" Before Entry Is Unconstitutional Under the West Virginia Constitution and Conflicts with Other State and Federal Laws….

[A] requirement that a person show a vaccine passport to enter "either public or private establishments throughout the state" is a legal step too far. Such a far-reaching requirement effectively equals banishment from society, preventing a person from participating in even the most basic activities of society. It is one thing to impair a person's right to social association—a right that has never been viewed as fundamental. Although courts have not yet addressed the question, it is quite another matter to insist on total isolation for the unvaccinated—an outcome that would seem to inevitably result from the lack of a passport.

A state-enforced, total prohibition on entry to public and private establishments could significantly impair the exercise of many fundamental rights—the right to worship, speak, assemble, petition, vote, travel, and more. And it should make no difference that the ultimate actor could well be a private entity, as your hypothetical contemplates that the State will have compelled the private entity to demand a passport in the first place.

These substantial impairments—whether examined through the lens of due process, equal protection, or the First Amendment—would, in our view, trigger strict scrutiny. And as already detailed, a law like this would struggle to meet the narrow-tailoring aspect of the strict-scrutiny analysis, especially if other mitigation methods have been used to good effect for some time.

Further, as with the hypothetical state-employee mandate, this universal vaccine passport would struggle to fit with other state and federal anti-discrimination statutes. For instance, a private business could find itself facing an ADA or WVHRA claim if it were compelled to bar an unvaccinated person from its premises and that person was unable to obtain the vaccine because of a disability. We recognize that the Department of Justice (the agency that enforces ADA Titles II and III) has not yet issued guidance on this issue. But we can imagine many troubling scenarios. For example, giving an unvaccinated-because-of-disability patron the chance to order takeout, while denying him the chance to eat in, might deny the guest a "like experience" and thus contravene the statute. Ultimately, the business would need to show that the vaccination "passport" requirement was an essential eligibility requirement justified by a patron's "direct threat." That analysis would track the similar rationale described above in the employment context.

Overall, any passport requirement would, in our view, present significant additional problems under the West Virginia Constitution—as well as state and federal law.

 

[III.] A Private Entity's Choice to Require Employee Vaccination or Request Showing of a Vaccine Passport Without Exceptions Already Violates Federal and State Law, But the Legislature Could—and Should—Pass Additional Laws Banning Vaccine Mandates or Vaccine Passports.

While a private entity is not, as a general matter, subject to the same constitutional duties or restrictions as public entities, imposition of a vaccine mandate without exception may still give rise to some legal liability.

The anti-discrimination laws described above, including Title II, Title VII, the ADA, and the WVHRA, would still apply to both a private vaccine mandate and a request for a passport in a private business subject to these statutes. Thus, at a minimum, even private employers need to provide exceptions for religious-and disability-based objections for their employees.

In short, state and federal law may prevent private entities from imposing a blanket employee vaccination mandate.

To the extent that, as discussed above, state law does not expressly limit private entities from imposing vaccine-related initiatives, we believe this area is one ripe for legislative action— at a minimum, to provide for express religious or health exceptions to any such mandate. As a general matter, the West Virginia Constitution would not prevent the Legislature from banning both vaccine mandates (imposed by public or private entities) and vaccine mandates (imposed by the same). Even a broad ban—such as an amendment to the WVHRA like the Montana law— would not give rise to significant constitutional concerns, although it would impact the traditional framework for analyzing current anti-discrimination laws.

While we believe that such a restriction or model could be defended, we acknowledge that a federal court in Florida has enjoined enforcement of that State's vaccine-passport bans, reasoning that they violate the First Amendment and substantially burden interstate commerce. See Norwegian Cruise Line Holdings, Ltd. v. Rivkees (S.D. Fla. Aug. 8, 2021). Among other things, the court did not believe that Florida had identified any compelling state interest that the law advanced. The court thought the law (1) did not protect medical privacy in any provable way; (2) did not stop other ways to invade a patron's privacy, like simply asking about vaccine status orally; (3) did not prohibit private entities from discriminating against unvaccinated people; and (4) did not regulate employers. But in contrast to the view of the Florida court, West Virginia's interest in preserving the liberty of its citizens is real. A conscientious Legislature can address these under-and over-inclusiveness issues addressed in the Florida district court's opinions through careful drafting.

There should be no reason for hesitation in passing a ban on vaccine mandates or passport requirements or, at a minimum, requiring religious or medical exemptions in such requirements.