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IANAL: Would said requirement need to be found unconstitutional in order to prevent mandating vaccine in prisons, where prisoners are literally a captive audience? The two stakeholders comprise at least prisoners & guards. What legal hurdles would such a vaccination mandate face?

CONTEXT: The headline US prison guards refusing vaccine despite COVID-19 outbreaks indicates: Prison guards are refusing coronavirus vaccines at alarming rates..

UPDATE: September 2021: "My job as president is to protect all Americans," Mr. Biden said Thursday. "So tonight, I'm announcing that the Department of Labor is developing an emergency rule to require all employers with 100 or more employees that together employ over 80 million workers to ensure their workforces are fully vaccinated or show a negative test at least once a week." reference link / source

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    The title says employers. The question says prisoners. Which is it?
    – Nij
    Mar 16 '21 at 1:02
  • I think the guards are the employees being asked about. Mar 16 '21 at 1:26
  • Yes, that's how I read it, too. I think the mention of prisoners is meant to emphasize the employer's interest in imposing the vaccination requirement.
    – bdb484
    Mar 16 '21 at 2:02
  • I am interested in the prison guards.
    – gatorback
    Mar 16 '21 at 3:03
  • Are state government employees included in such Federal regulations? Sep 11 '21 at 18:14
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One thing that may prevent this is contract law: the employer may not have the power to impose new requirements on employees during the period of the current contract. For prisons that are run by government agencies, there may also be statutory restrictions on what the warden or Bureau of Prisons can compel employees to do without legislative approval (this is a general feature of government employment). There are additional disability and religion-based protections for employees. Apart from such legal considerations, the vaccine is not universally available, which explains why not all employers mandate that employees get vaccinated. It's not clear how prisons, specifically, are relevant: there's no general rule that "because it's a prison, normal law is suspended".

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    Unstated reality which backs up your answer: Almost all prison guards are unionized and those that aren't have civil service protections against dismissal or suspension.
    – ohwilleke
    Mar 16 '21 at 2:07
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    It is an implicit term of an employment contract that employers can issue "lawful and reasonable" directions. Mandating vaccination, if a lawful and reasonable direction, is not changing the contract.
    – Dale M
    Mar 16 '21 at 2:09
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    Maybe I should have asked for pandemic (or similar on point) case law that illuminates precedent? As of September 2021, the country is stalled in terms of vaccination rates: plenty of vaccine availability. Prisons are interesting as it is virtually impossible to distance (virus does not care if you are an inmate or a guard) and workers are in tight spaces with other people. The same is true on NAVY ships.
    – gatorback
    Sep 11 '21 at 11:50
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Reasonableness

An employer is entitled to issue lawful and reasonable directions to its employees and failure by an employee to comply is grounds for disciplinary action. Conversely, an employee is not required to follow unlawful or unreasonable instructions.

Mandating vaccination is, AFAIK, lawful.

So the question is: is it reasonable?

Reasonableness requires consideration of all the circumstances. On the one hand, there is a requirement for invasive medical intervention, albeit, a relatively minor one. On the other are the particular risk to the employee, other employees and the employer's operations if the employee contracts Covid-19 and other methods that could be used to manage that risk.

This may mean that the instruction might be reasonable for some employees (e.g. those working in the prison hospital) but not for others (e.g. administrative staff with no prisoner contact).

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  • Most anti-vaxxers cite "religious reasons" as an excuse for not following vaccinations. As far as I know, at least in the US, you can't fire somebody for religious reasons (see Title VII of the Civil Rights Act 1964). The ADA also covers this, as they cannot force an employee to get one that has a medical reason for not getting it as long as reasonable accommodation is possible.
    – Ron Beyer
    Mar 16 '21 at 2:57
  • @RonBeyer: Neither of those look like they would prevent employers from requiring their employees to get vaccinated against their religious beliefs, though.
    – Vikki
    Dec 20 '21 at 3:45

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