Health Care Regulation

On August 9, 2021, Washington Governor Inslee issued Proclamation 21-14 requiring certain classes of individuals to obtain a COVID-19 vaccination by October 18, 2021. Technically, the order mandates a vaccine in reverse by prohibiting not having a vaccination.

    1. Prohibitions. This order prohibits the following:
      1. Any Worker from engaging in work for a State Agency after October 18, 2021 if the Worker has not been fully vaccinated against COVID-19;
      2. Any State Agency from permitting any Worker to engage in work for the agency after October 18, 2021 if the Worker has not been fully vaccinated against COVID-19 and provided proof thereof to the agency;
      3. Any Health Care Provider from failing to be fully vaccinated against COVID-19 after October 18, 2021; and
      4. Any individual or entity that operates a Health Care Setting from permitting a Health Care Provider to engage in work for the individual or entity as an employee, contractor, or volunteer after October 18, 2021, if the Health Care Provider has not been fully vaccinated against COVID-19 and provided proof thereof to the individual or entity. Providers who do not work in a Health Care Setting must provide proof of vaccination to the operator of the facility in which the Provider works, if any, or, if requested, to a lawful authority. A lawful authority includes, but is not limited to, law enforcement, local health jurisdictions, and the state Department of Health.

You do not need to obey the order if you can show that you have a health reason or a “sincerely held religious belief” that conflicts with the vaccination order. Those terms are defined and explained under the Americans with Disability Act (ADA), the Washington Law Against Discrimination (WLAD) or similar law.

    1. Exemptions from Vaccine Requirement.
      1. Health Care Providers and Workers for State Agencies are not required to get vaccinated against COVID-19 if they are entitled under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Washington Law Against Discrimination (WLAD), or any other applicable law to a disability-related reasonable accommodation or a sincerely held religious belief accommodation to the requirements of this order. Nothing herein precludes individuals or entities for which Health Care Providers work as employees, contractors, or volunteers and State Agencies from providing disability-related reasonable accommodations and religious accommodations to the requirements of this order as required by the laws noted above. As provided in the ADA, Title VII, and the WLAD, individuals or entities for which Health Care Providers work as employees, contractors, or volunteers and State Agencies are not required to provide such accommodations if they would cause undue hardship.
      2. To the extent permitted by law, before providing a disability-related reasonable accommodation to the requirements of this order, individuals or entities for which Health Care Providers work as employees, contractors, or volunteers and State Agencies must obtain from the individual requesting the accommodation documentation from an appropriate health care or rehabilitation professional authorized to practice in the State of Washington stating that the individual has a disability that necessitates an accommodation and the probable duration of the need for the accommodation.
      3. To the extent permitted by law, before providing a sincerely held religious belief accommodation to the requirements of this Order, individuals or entities for which Health Care Providers work as employees, contractors, or volunteers and State Agencies must document that the request for an accommodation has been made and the document must include a statement regarding the way in which the requirements of this order conflict with the religious observance, practice, or belief of the individual.

Individuals requesting exemption must provide some form of written documentation requesting the exemption. For health care exemptions, a qualified Washington licensed health care professional must identify the disability requiring an exemption and the probable duration of the exemption. For religious beliefs, an individual must provide a signed statement describing the conflict between the Proclamation and the religious belief.

Governor’s Authority

How can the governor get away with telling me to get vaccinated?

The Governor may exercise emergency powers granted under state statutes (Chapters 38.08, 38.52 and 43.06 RCW). These powers were summarized by the Washington Supreme Court in a case brought last year by prisoners seeking to force the Governor to reduce the prison population in response to COVID-19.

The executive branch has historically led Washington’s response to emergencies. “The proclamation of an emergency and the Governor’s issuance of executive orders” to address that emergency “are by statute committed to the sole discretion of the Governor.” The law empowers the governor to “proclaim a state of emergency” in response to a disaster that threatens “life, health, property, or the public peace.” RCW 43.06.010(12). An emergency proclamation unlocks “the powers granted the governor during a state of emergency.” Those emergency powers are broad and include the authority to prohibit “[a]ny number of persons … from assembling,” RCW 43.06.220(1)(b), “to waive or suspend” “any statute, order, rule, or regulation [that] would in any way prevent, hinder, or delay necessary action in coping with the emergency,” RCW 43.06.220(2)(g), to “order the state militia … to assist local officials to restore order,” RCW 43.06.270, and more. “These statutory powers evidence a clear intent by the Legislature to delegate requisite police power to the Governor in times of emergency.” [Colvin v. Inslee, 195 Wn.2d 879 (2020) Case citations omitted]

Legislators introduced measures to limit the Governor’s emergency powers this past year; but these limitations were not enacted (e.g., HB-1557). Instead, the Governor’s emergency powers were expanded by the Legislature (e.g., ESSB-5178 and SHB-1151).

If you think you can ignore the emergency order, think twice. The Washington Supreme Court considered a challenge to a recall initiative against Seattle City Councilmember Kshama Sawant that included the charge that she ignored the governor’s stay at home order.

By opening city hall when it was closed to the public in response to the governor’s Stay Home – Stay Healthy order, Councilmember Sawant arguably obstructed city business and placed people at risk by failing to ensure social distancing and sanitation measures established by the Washington State Department of Health guidelines.

… While it may be true that Councilmember Sawant had discretion to admit members of the public to city hall on other occasions, Councilmember Sawant knew the council had closed city hall to the public in response to the governor’s Stay Home – Stay Healthy order as she voted to permit the council itself to meet remotely. Moreover, her action of letting protestors into city hall was not related to a city purpose. [In re Recall of Sawant, 197 Wn.2d 420, (2021)]

In another voter recall case in February, the Supreme Court in considering sufficiency of grounds for recall of Snohomish County Sheriff Adam Fortney found:

Here, the voters may infer that Fortney’s public statements, combined with his refusal to enforce the Stay Home – Stay Healthy proclamation, were intended to telegraph more than just an “announcement” of his discretionary decisions.” Voters may reasonably conclude that Fortney abused his discretion by inciting Snohomish County residents to violate the law. [In re Recall of Fortney, 196 Wn.2d 766 (2021)]

If you can’t ignore the emergency order, how do you comply?

Accommodation for Sincerely Held Religious Belief or Disability

Employers should adopt and communicate policies and procedures for vaccination exemption requests on disability or religious grounds. Individuals subject to the vaccine mandate but self-employed, should be prepared to provide sufficient documentation to relevant regulatory authorities justifying an exemption on such grounds. For example, a health care practitioner may jeopardize their license to practice by violating the order.

Remember too that an employer may independently require vaccination without the presence of an emergency order if the employer honors an accommodation request for disability and religious belief. [See generally EEOC guidance also linked on Washington Human Rights Commission website.]

For “sincerely held religious belief,” the employer should assume the exemption request is genuine and proceed to document the request [See extensive discussion of religious belief in State v. Arlene’s Flowers, Inc., 193 Wn. 2d 469 (2019)]. An employer may request an explanation and may deny the request when the request is clearly disingenuous. The Equal Employment Opportunity Commission provides extensive guidance on religious accommodation on its website here. Washington State’s Law Against Discrimination also provides similar standards.

Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information. [EEOC Guidance Section 12-I A.2. Religious Discrimination – Sincerely Held]

Where the accommodation request itself does not provide enough information to enable the employer to make a determination, and the employer has a bona fide doubt as to the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for the accommodation.[224]  Whether an employer has a reasonable basis for seeking to verify the employee’s stated beliefs will depend on the facts of a particular case. [EEOC Guidance Section 12-IV A.2. Discussion of Request]

The Washington State Department of Health provides a certificate of exemption for religious and medical exemptions for school and child immunization requirements that can be modified for use by employers.

Accommodation requests related to health or disability require an appropriate diagnosis and recommendation by a Washington State licensed health care professional. In some instances, an employer may deny the request if the employer can demonstrate that granting a disability accommodation would constitute an “undue hardship.”

Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee. [EEOC FAQ]

Constitutional Challenges to Vaccination Mandates

If you just cannot live with the oppression of a vaccination mandate and have money to burn on litigation, consider the latest constitutional challenge to a state employer mandate.

On August 2, 2021, the United States Court of Appeals for the Seventh Circuit affirmed the District Court’s ruling upholding Indiana University’s vaccination mandate unless the student was exempt for religious or medical reasons. The Court cited a 1905 United States Supreme Court case upholding public vaccination mandates against smallpox as precedence for a vaccination mandate for COVID-19. The Court found that if vaccination mandates for smallpox without exceptions is constitutional then vaccination against COVID-19 with exceptions for disability and religious beliefs cannot be unconstitutional.

Plaintiffs invoke substantive due process. Under Washington v. Glucksberg, 521 U.S. 702, 720-22 (1997), and other decisions, such an argument depends on the existence of a fundamental right ingrained in the American legal tradition. Yet Jacobson, which sustained a criminal conviction for refusing to be vaccinated, shows that plaintiffs lack such a right. To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.

Like so many other divisive issues, elected officials must cooperate to find solutions that satisfy public needs while honoring private desires. I won’t be holding my breath in anticipation of that event.