by Richard Birdsall, J.D.
Unlike the other 500+ articles in workplacecoachblog.com, I didn’t write this intriguing post. An attorney I hold in high regard presented me a novel view on the risk employers take when terminating employees who refuse vaccines.
Although his view doesn’t align with my own, I thought his perspective important to share, and would be interested in everyone’s responses. Rick would like to know your thoughts as well. Lynne
Brandon and his family had COVID last February. They now have natural immunity.
Brandon is unwilling to get vaccinated because the available vaccines have only been authorized for “emergency use” and are not officially FDA “approved” which typically takes 8-10 years of monitoring to ascertain potential side effects.
Brandon’s employer has demanded that Brandon be vaccinated to return to work or bear the personal expense of weekly testing. Brandon refused. He was subsequently terminated.
Is Brandon’s employer liable for wrongful termination pursuant to the American For Disabilities Act (ADA)?
I would argue, “yes.” Ironically, OSHA’s recent intervention with emergency temporary standards requiring larger employers (100 or more) to institute a mandatory vaccination policy (vaccination or mandatory testing) only makes the case stronger. OSHA has labeled it a “safety issue” deeming unvaccinated and/or untested employees to be a health risk.
The ADA (Title 42 U.S.C. sec. 12102) defines “disability.” There are three prongs to the definition. This article focuses on the third prong that has been largely overlooked in the public forum.
Section 12102(1)(C) is the third prong. It is unlawful to discriminate against someone in employment if they are “Being regarded as having such an impairment.”
Section 12102(3)(A) further specifies that an employee cannot be “ . . . subjected to an action . . . because of an actual or perceived mental or physical impairment.” (Emphasis added).
This provision was enacted to protect people from stereotypes and fears associated with particular health issues. Liability may attach even though an employee does not have a disability. An employer only needs to treat them as such — whether or not a disability exists in fact.
So, let’s explore the true reason Brandon was terminated. I can only think of one. He was terminated because he was perceived as a health threat in the workplace. He is perceived as a walking COVID petri dish.
Now that OSHA has promulgated Emergency Temporary Standards to large employers signaling that this is a “safety” issue, the perception of disability has been exacerbated and codified.
So, the federal government, through OSHA, perceives and requires large employers to discriminate against unvaccinated employees in apparent contradiction with the ADA (enforced by the EEOC).
Don’t expect the EEOC to step up to the plate and address this issue since it has now been politicized. Historically, the EEOC has addressed contagion issues as evidenced by its response to the A.I.D.S. epidemic. The EEOC viewed persons with A.I.D.S. as a disability, or belief that someone may have had A.I.D.S. as a perceived disability.
So employers, beware. If you chose to follow the OSHA requirements you are, in fact, treating unvaccinated employees disparately while violating their terms and conditions of employment. The question is: Are you in violation of the ADA because you perceive unvaccinated employees as a disability?
Ultimately, the courts will resolve the issue. But it will take time. Damages for unlawful termination can be quite significant.
Respectfully submitted, Richard Birdsall, J.D.
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I’m not sure that saying someone has natural immunity is accurate. People have been known to get Covid more than once, and even vaccinated individuals are being shown to lose their immunity over time (hence the booster recommendation).
Your point is noted, but studies are showing that those who have recovered from prior infection have 13x – 29x (depending on the study) greater immunity to C19 than those who have been vaccinated but never had the virus itself. So prior infection should not be disregarded as irrelevant, and in most countries it is not. It is only the US and Canada that are acting as though prior infection doesn’t contribute to herd immunity goals.
It’s nice to see an alternate viewpoint. As one who cannot be vaccinated due to having had a previous serious reaction to a flu shot that put me in the hospital, the continued push in this country and others to force people to vaccinate is alarming. And I personally have a friend who had a medical exemption whose employee refused to honor it and she was fired anyway. So I have little faith that a medical exemption will protect me if the country continues to march in lock step on this issue and also continues to be one of only two countries (Canada being the other) that refuses to recognize the validity of immunity due to prior infection. I have begun to accept the inevitability that I will be faced with the option of either leaving the workforce or taking a vaccine that may seriously harm me. Another thing I find alarming is I’m not really hearing about sunset clauses on any of this, which makes me worry it’s a permanent change that all employers can (or will be forced to) demand employees be vaccinated (I would assume you could expand the list of necessary vaccinations once the precedent has been set).
Employers have an obligation to protect workers from exposure to a potentially life threatening disease . This employer allowed weekly testing in place of vaccination, which the employee refused. I think the firing was justified.
For medical exemptions , I believe the employer should offer to pay for the testing or explore whether other accommodations could be made such as remote work.
What is even more disturbing are those falsifying religious beliefs to find a loop hole to say “I am exempt because my god or ghost said he will protect us” I work for a large military industrial complex where 1000 have falsified documentation of religious affiliation. How on earth are liars and fraudsters allowed to protect this country? How are these unvaccinated cult followers and who refuse to wear a mask any less of a threat than myself that just simply does not want to get the vaccine? I had had it once Feb 2020 and have come in contact with 1000 of infected since. Even more disturbing is the fact the vaccine cloaks the symptoms thus allowing individuals to believe they are healthy and continue to spread the disease. Sign and symptoms of a disease are a naturally great thing that we need…if you look sick and feel sick you either stay home or we stay away from you. NOW we don’t know who is a carrier or not! Unfortunately our company refuses to allow us to get tested so they would rather stand behind false idols than honest men or women.
Hi, Yankee Donavan, your email came in just as I’m working away on Tuesday’s post about those claiming religious exemptions for newly manufactured beliefs.
The attorney has an interesting viewpoint, and I will have to print this out and read it slowly and carefully to evaluate it as an argument. One point, having COVID does not give you “natural immunity,” at least not for long. Medical studies have found that vaccination gives more antibodies and longer immunity than having had and recovered from COVID. I’m not sure that you can argue that presenting a safety issue [to self and coworkers] means you have a disability. You are potentially the source of a problem–infecting coworkers, customers, and vendors.