Last week the United States Equal Employment Opportunity Commission (EEOC) affirmed that employers could require employees to receive the COVID-19 vaccine so long as they comply with the Americans with Disabilities Act and other anti-discrimination laws,
While most people were happy to receive COVID-19 vaccines, some can’t receive the vaccine because of either medical, religious reasons or pregnancy. Some just refuse to get vaccinated period.
So what options do employees who are unable or unwilling to take the vaccine have on the job?
On the flip side, do employees have legal protections against co-workers or employers who refuse to protect employees from the risk of COVID-19.
The health care industry has dealt with mandatory vaccinations in the context of the flu virus for years. In short, the accommodation, either for medical or religious reasons, was often to wear a mask.
Obviously, some employees refuse to wear masks. In fairness, the use of masks for flu prevention before the COVID-19 pandemic was questioned. There is also a strain of disinformation circulating on social media that goes along the lines of: I have a medical reason not to get vaccinated or wear a mask and under HIPPA no one can ask me for that reason. If they do ask, I can sue them. Another myth involved the 4th Amendment right to privacy which only applies to government and not private employers.
This is a blatant falsehood. Anytime a worker is asking for an accommodation for medical condition, whether a work injury or personal injury, the employee gives up a fair amount of privacy as to that medical condition. Yes, employers are required to reasonably accommodate disabilities under the Americans with Disabilities Act. But in order to ask for a reasonable accommodation an employee often needs to share detailed medical information with their employer.
So in short, if you refuse an employer request to take a vaccine, you need a good reasons and should be able to substantiate it and share that reason with your employer.
I am pro-vaccine. I also believe vaccination policy is a workplace safety issue for reasons explained below. But I feel some sympathy with those subjected to mandatory vaccines at work. Throughout the pandemic, business has denied liability for COVID-19 spread in the workplace. But if the reasons for mandatory vaccinations is employee and customer safety, how can business turn around and argue that they aren’t liable for COVID exposure in the workplace? It seems like the contradiction can be reconciled through employers desire to exercise dictatorial control over their employees in the workplace.
What about workplace safety
This post my seem like I’m being overly sympathetic to COVID deniers and anti-maskers. I’m not. I am very disturbed that these types have taken to social media to attack former OSHA deputy assistant secretary, Jordan Barab, for raising serious concerns about the lack of OSHA guidance in retail workplaces in light of the latest CDC guidance that states vaccinated people can go largely to unmasked indoors.
Workers who are still concerned about COVID-19 exposure are in a difficult spot. While workers in certain industries can sue employers directly for safety violations, workers in the retail industry cannot. They need to rely on state law claims if they want to take direct action. I think one good idea for legislation would be to create a whistleblower act for retail workers.
OSHA is starting to sue employers for retaliating against employees, but those suits are just now starting well over a year into the pandemic. While it’s good that OSHA is starting to bring cases on behalf of employers, OSHA only brings suits in a small number of cases where retaliation is alleged.