By Jack Tuckner, Esq.
What is the Effect of the New Biden Vaccine Mandate?
Can your employer really require you to get a COVID-19 vaccine as a condition of employment?
As an employee rights lawyer for decades now, I’ve been fighting for employees who are being discriminated against, treated differently, harassed, or wrongfully discharged. So, I am on your side. That’s what I do for a living.
There are times, however, when it comes to things like the vaccine mandate, where it’s just really not that simple. And so, if you stick around until the end of this brief talk, I will give you some tips on how to potentially be excused, at least temporarily, from the requirements of getting the COVID-19 vaccine and, perhaps permanently, if you fit into one of the few categories that may allow you to refuse or simply cannot take the COVID-19 vaccine. But first a little update.
What Actions Has the Biden Administration Taken for Mandatory Vaccines?
So, the Biden administration last week authorized and now has ordered the Occupational, Safety and Health Administration of the United States to enforce COVID-19 vaccine mandates for all federal employers and for all private employers in the United States with at least 100 employees. If you work for a private company with a least 100 employees, you will, going forward, need to either show that you have been vaccinated either at work or through an independent vaccine provider or undergo weekly testing.
The Current COVID-19 Reality in the US
Keep in mind that Americans are pretty united in support and in favor of the COVID-19 vaccine. At least 75% of adult Americans now have taken at least one shot of the coronavirus vaccine. Yet, COVID-19 has killed 660,000 Americans so far, that’s roughly the entire population of Boston, Massachusetts, and every day it’s still killing 1500 more people. This country is in the midst of a really big vaccine push for the public health and safety, just as we’ve done in the past with smallpox, polio, whooping cough, measles, etc.
Now, also to note, to a reasonable degree of medical certainty, these COVID-19 vaccines have been proven safe, protective, and 95% effective in decreasing hospitalizations and deaths, at least for those of us who are under 65 years of age. And even above 65 years of age, the effective rate is 80% plus, yet this virus is so vicious that we need more than a 75% buy-in rate. We need to increase that number so that it stops killing 1,500 Americans a day. So, how do we get that social consensus up above 75% to get where we need to go from where we are?
The administration’s new mandatory vaccine push is a step in the right direction, as it will affect tens of millions of people because COVID-19 isn’t defeated yet. One would also think, I note, that if you’re against mandatory lockdowns and mandatory masking, you should be super in favor of vaccines, right? Because you’re either sort of pro-COVID-19 or anti-COVID-19. And those are the ways for us to tackle this major once in a century health crisis that we’ve all experienced, that has affected all of us, and in one way or another is affecting our lives.
So now the US Occupational Safety and Health Administration will be in a position of regulatory authority (they’re greatly understaffed and it’s anyone’s guess how they’re going to accomplish it at this point), but the rules itself may incentivize and push companies and employees to get the COVID-19 vaccine that may save their own or their families or their neighbors or their parents or grandparents or protect their children’s lives, ultimately.
Requirements for COVID-19 Vaccines are Not That Different Than Other Vaccine Requirements
And just before I get into the potential methods for you to attempt to not get vaccinated and stand up to your company’s mandatory vaccine requirement, just keep in mind the following: before you’re able to join the military or a loved one can join the military and start boot camp. You have to undergo and take a slew of vaccines, everything from measles, mumps, rubella, hepatitis A, hepatitis B, pneumonia, influenza, tetanus, chicken pox, polio, meningitis, HPV, and others I’m not thinking of at the moment.
And before entering school in all 50 states in the United States (and it’s been this way for more than 40 years) your child has to take even more vaccines than that. It may be 16 or 17 vaccines to keep your child and his classmates and you safe, right, from these formerly deadly diseases. It’s the same thing that’s now going on with COVID-19.
So, we don’t really have a right, just like we don’t have a right to drink and drive, or a right not to wear a seatbelt because it inhibits our freedom. We don’t really have a built-in right to say, it’s my body, and I don’t want to put this into my body because it’s just the way I feel about it. Even if you’re nervous, that won’t make a compelling legal argument to your employer or in court, if you’re terminated for not taking the COVID-19 vaccine, or for just being willing to test weekly, if you’re that adamant about it.
The Legal Exceptions for the COVID-19 Vaccine – What Can Be Done
So let me though, talk about the few ways that an employee can in good conscience, in good faith, attempt to indicate to one’s employer, that I am not going to bend to this vaccine requirement, that I shouldn’t have to, because of the following:
Taking the Vaccine Would Be Medically Harmful
One exception would be due to a disability that you have that would endanger you if you took the vaccine. And usually, the danger in taking the vaccine should be worse or a greater danger than the danger of getting the virus, and what that would do to your health and the health of others.
Now, if you have certain medical conditions that would preclude you from taking the vaccine for whatever those reasons are, an immunodeficiency of some kind, you’re in a treatment, perhaps for cancer, it may not be medically advisable to not get the vaccine. If you have some exceptional current challenge, medical challenge, that scientifically, medically, your physician can prove, can state that you shouldn’t be taking this vaccine, either forever, or for a period of time during this course of treatment or until and unless you heal, that requires your employer to take that all under account, have this discussion to determine your needs, the needs of the individual, you, not to take a vaccine, versus the needs of the many, the company, and typically the needs of the many outweigh the needs of the one.
On the other hand, if you have severe anxiety that’s documented by a mental health care worker around vaccines, etc., perhaps your company will say that for you, we understand that, and at least until another year or six months, or the pandemic has passed, we will permit you to work from home, for example, or to work alone with a mask in this particular space.
But your company does have to go through the motions of this so-called interactive process to determine whether or not they will allow you to be an exception to the COVID-19 vaccine mandate or whether they will say it’s an undue hardship on us, and your explanation really doesn’t rise to the level of what’s needed for us to grant that exception, because too many others also may come forward and say that they too are nervous about getting the vaccine.
Is Pregnancy an Acceptable Reason Not to Get Vaccinated?
If you’re pregnant, because that’s a temporary disability while you’re pregnant, if your obstetrician writes a note to say that during this gestational cycle, you should not be vaccinated, this is also a good reason and excuse to put forth so that your company must have that balanced conversation with you (the interactive process), to determine whether you may keep working without getting vaccinated.
They might say that for another six months until your baby is born, we will permit you to not get vaccinated and work from home, although I note that many doctors still will say the risk of COVID-19 to a mother and an unborn baby is far greater than the risk of getting the vaccine. But pregnancy is one of those accommodation-worthy events, particularly because it is brief, that your employer must take into account, if right now you, your family, and your physician doesn’t believe it would be in you or your baby’s best interest to take the vaccine.
The Religious Exemption
And finally, religion. There are times like in New York state now, if you’re a healthcare worker, the religious exemption for an accommodation, allowing you to avoid the vaccine, is completely suspended, but religion, a sincerely held religious belief may be enough to have your employer do that same accommodation test: your needs, your beliefs versus the public health and safety and the company safety, and (after the reasonable accommodation analysis) are they willing to permit you that exemption from the COVID-19 vaccine mandate based on your sincerely held religious beliefs?
I’ll add that most organized religions have no anti-vaccine platform to argue against or about. So, to come up with a sincerely held religious belief that’s supported by your clergy, may not be as easy as it seems.
You just can’t say it’s against my deeply held religious convictions. You’d have to explain that further and show why your particular sincerely held religious beliefs would (or should) preclude you from taking a vaccine that is likely in your best interests notwithstanding, and the interests of the company.
If you have questions about your particular situation in the workplace as it relates to vaccines, your pregnancy, or any disability, please give us a call, email us, and we will evaluate your case, confidentially and with no charge to you. Take care now. Stay safe.