Many people are terrified of the probable COVID-19 vaccine mandates. While many paths of mandate evasion have not been supported by law, there’s more than one way to skin a cat, and I’m determined to figure this out. Here’s the latest conclusion I’ve come to.
Yes, an employee can mandate the jab.
HOWEVER, there may be a way of evading the vaccine mandate. This breakdown will explain how I believe you may be able to do just that.
Americans with Disabilities Act (ADA):
1. If the employer has 15 or more employees then they are required to abide by the ADA by Federal law.
2. If the state or local laws differ, they only trump the ADA if they favor the employee.
Disability exemption:
1. An employee may be entitled to an exemption based on an ADA disability that prevents them from receiving the COVID-19 vaccine.
2. If you are immunocompromised, you are unable to receive the vaccine because of a disability.
3. If you claim you cannot receive the vaccine because of your disability during prescreening, they cannot ask you what your disability is without violating the ADA.
4. If you cannot receive the vaccine because of your disability, the employer must show that the employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
a. The employer must consider four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
b. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.
5. If the employer considers the employee to be a direct threat to the workplace, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation.
6. If the direct threat cannot be accommodated to reduce the threat, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may terminate the worker.
7. It is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.
FDA approval vs Emergency Use Authorization (EUA):
1. The currently available COVID-19 vaccines are under EUA granted by the FDA, and do not have approval under FDA vaccine licensure.
2. Because the vaccine is not approved, the FDA under EUA is required to ensure that recipients of the vaccine under an EUA are informed of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, and that they have the option to accept or refuse.
Pre-screening questions:
1. Pre-screening questions may implicate the ADA’s provision on disability-related inquiries, which are likely to elicit information about a disability.
2. Such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.
3. The employer asking why an individual can not receive it, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”
4. The ADA requires that the employee’s decision to answer pre-screening, disability-related questions must be voluntary.
5. The employer may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
Providing proof:
If an employer requires employees to provide proof that they got the vaccine, the employer cannot mandate that the employee provide any medical information as part of the proof.
Sources:
•https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
•https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html
•https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
