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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