It sounds wrong on its face – “President Joe Biden…announced (on July 29, 2021) sweeping new pandemic requirements… Federal workers will be required to sign forms attesting they’ve been vaccinated against the coronavirus or else comply with new rules on mandatory masking, weekly testing, distancing and more.” This follows shortly after “California Governor Gavin Newsom announced (on July 26, 2012) that his state will require all state employees and healthcare workers to provide proof of vaccination or be subject to regular COVID-19 testing. On August 5, 2021, the California Department of Public Health issued a public health order implementing the governor’s prior proclamation as it relates to healthcare workers in the state.” Then, on August 18, 2021, “Washington Governor Jay Inslee expanded his state’s vaccine mandate to include all education staff, faculty, and on-site contractors. The mandate extends to employees working in K–12 settings, most childcare and early learning, and higher education.”
Federal and many state employees are not the only ones facing mandatory vaccinations. “More than a dozen large U.S. corporations, including Walmart, Google, Tyson Foods and United Airlines, have recently announced vaccine mandates for some or all of their workers… Google and Facebook have mandated Covid immunizations for anyone returning to their U.S. offices. Walmart, which has 1.6 million U.S. employees, has imposed a vaccine mandate for all corporate and management staff, while store employees must wear masks in high-risk counties.”
In particular, both state hospitals and private healthcare companies have jumped on the bandwagon of mandating vaccines for their employees. At last count, this includes Envision Healthcare in Nashville, Tennessee, Presbyterian Healthcare Services in Albuquerque, New Mexico, Akron Children’s Hospital in Ohio, and the states of Oregon, Massachusetts, Connecticut and Rhode Island.
In particular, healthcare workers who have not complied with these mandates have lost their jobs; “Former Houston Methodist nurse Michelle Fuentes told KRIV-TV she was fired and escorted from the hospital after refusing to meet the hospital’s deadline to get vaccinated.
Fuentes said she was waiting for a “little bit more research to be done” on the vaccines and had turned in her two weeks’ notice after refusing to get one, but was terminated before her planned resignation date… Jennifer Bridges, another nurse at Houston Methodist, which is the first hospital in the country to require all employees to be vaccinated, told KHOU-TV she plans to file a lawsuit against the hospital challenging the mandate… Desiree Pelletier had a similar story, telling WPMT-TV she was being fired from her job at a Pennsylvania behavioral health center for refusing to get the vaccine.”
The natural question which arises in the mind of many freedom-loving Americans, who bristle at the idea of anything mandatory – can they do that? Is it legal to mandate vaccinations as a condition of employment?
The short answer is, yes. But as usual, there are exceptions. To assert these exceptions, however, will be a struggle.
So far, legal action against employers who mandate vaccines has not been successful. “More than 100 nurses and other healthcare employees filed suit against their employer, Houston Methodist Hospital and Houston Methodist The Woodlands Hospital, under Texas common law, claiming that it is unlawful for Houston Methodist to require the vaccine… On June 12, 2021, after denying the employees’ request for a temporary restraining order…U.S. District Judge Lynn N. Hughes inoculated employers from such challenges (at least in Texas) by kicking the lawsuit out of court because ‘Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker … [and r]eceiving a COVID-19 vaccination is not an illegal act, and it carries no criminal penalties.'”
Judge Hughes went on to state that “employers are not ‘coercing’ employees to get vaccinated when implementing policies requiring vaccination. He explained…'[Plaintiffs] can freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else.'”
Requiring healthcare workers to submit to a vaccination as a condition of their employment is nothing new. In fact, 17 states “require hospitals to offer employees flu shots or track their vaccination statuses,” including Colorado, Georgia, Illinois, Maine and Maryland. But requiring private corporate staff, or all federal and state employees, and not just those involved in healthcare, is something new.
The federal government has made it clear that they will support implementation of mandatory vaccination measures. “The U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces laws against workplace discrimination, offered the guidance because the Americans With Disabilities Act of 1990 puts limits on employers making it mandatory that employees receive medical examinations that ultimately reveal private information about an employee’s physical or mental conditions…the commission explained a COVID-19 vaccination requirement does not bring up these ADA issues. ‘If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status,’ the commission said, ‘and, therefore, it is not a medical examination.'”
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Expect there to be bitter legal fights over what constitutes an exception to the vaccination policy being implemented in most places. “(F)ederal anti-discrimination laws don’t prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws, according to the EEOC.” Yet, “(t)he (EEOC) added that requiring an employee to show proof of vaccination is not a disability-related inquiry. ‘There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related,’ the commission said.”
Then there is the attractive issue of an employee asserting a religious accommodation. “Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business… (t)he definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer ‘should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,’ according to the EEOC. ‘However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.'”
There are additional issues involved with mandated vaccinations. “The federal Occupational Safety and Health Administration (OSHA) is warning employers that they will be held liable for any adverse events resulting from mandatory Wuhan coronavirus (Covid-19) ‘vaccination’ policies. If an employee who was forced to be injected with experimental mRNA gene therapy becomes paralyzed or dies, for instance, that injury or death will be considered ‘work-related,’ meaning the employer will be held responsible… (w)hat this means is that employers who try to force their employees to get injected are opening themselves up to lawsuits, worker’s compensation claims and a negatively impacted safety record.”
Of course, not every state in our union has followed the federal government’s lead in this matter. “On May 7, 2021, Montana governor Greg Gianforte signed into law Montana House Bill 702, under which Montana became the first jurisdiction to recognize an individual’s vaccination status as a protected category. The law also prohibits employers from requiring employees to disclose their immunization status and bars employers from requiring employees to receive certain types of vaccines or to possess an immunity passport… (u)nder the law, businesses, governmental entities, and places of public accommodation may not refuse to serve or withhold goods from any person ‘based on the person’s vaccination status or whether the person has an immunity passport.’ Likewise, employers may not discriminate against or refuse to employ an individual based on whether the person has been vaccinated or possesses an immunity passport. The law bars employers from requiring employees to receive vaccines, such as the current COVID-19 vaccine…”
While Montana’s law is a hopeful development, let’s face the facts – the choices here are not good. Unless you are willing to struggle for a medical or religious accommodation, your employer is going to most likely be able to dictate a medical choice to you. This is not to discourage you, the reader, from asserting your personal freedom from medical treatment with which you do not agree, or are not comfortable receiving. But you can expect a battle with an employer who wants their employees vaccinated.
Ultimately, you may end up unemployed, and in fact, you may end up fighting for your unemployment benefits, since “someone fired for breaking a company policy…can be denied benefits.”
But I will remind you of one phrase that defines this struggle – freedom is not free.
Judge Wilson served on the bench in NYC.
Illustration: Pixabay