And no, being “fragile” or having a vaccine exemption is not being disabled under the ADA

And no, being “fragile” or having a vaccine exemption is not being disabled under the ADA

Ok, so if it’s not medical discrimination, how about discrimination against the disabled under say the American With Disabilities Act?

Probably a fairly hard no for almost all of the current exemptees.

For starters, if your child got an exemption because of family history, or a genetic test, your child isn’t disabled. Same applies if the exemption was based on a prior AE, unless the AE caused your child to be actually disabled, and I’m guessing that is rare.

Here are some definitions from the ADA

“Sec. 12102. Definition of disability

As used in this chapter:

(1) Disability

The term “disability” means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”

My understanding is that most exemptees are basically healthly, but had some AE in the past, or family history of some kind of autoimmune condition and some combination of genetic polymorphisms, which some doctors think might create a higher risk of a serious AE upon further vaccination.

That’s not being disabled under the ADA or any other disabiiity law.

Two caveats: First, I am not a disability lawyer, but I do know how to read a statute. Second, I’m not saying there aren’t any exemptees out there who might fit the definition of disabled, but what I am saying is that from what I’ve seen in medical records and discussion with physicians, most exemptions are given to kids who don’t meet the definition of being disabled.

So, no sale, for me at least. Nonetheless, I’m sure the argument will find its way into some lawsuit if and when SB 276 becomes law.

Keep thinking!

Rick Jaffe, Esq.

6 thoughts on “And no, being “fragile” or having a vaccine exemption is not being disabled under the ADA

  1. I still believe the only legal position against SB276 is the Clawback component. Current medical exemptions are entirely within the law of SB277. There is no desputing that even if Pan claims they are “illegal”. They are not…period. So to invalidate them after the fact will run into legal challenges that I bet will survive.

    Other than that, I suggest Californians join me as a former Democrat and #walkaway. Create a grassroots effort to put more Libertarian minded Independents or Republicans in office. Pan got re-elected because his constituents just voted Democrat down the line. I’m saddened for my old party, but I’ve accepted the new reality!

  2. “clawback” is both a legal term and is a common use term (like “discrimination”).
    Legally, a clawback is usually when a benefit, usually money, is taken back based on a subsequent condition (like a breach of contract).
    I don’t see a clawback in any relevant statute, so what you’re saying is well they gave me this right or benefit and they just can’t take it back, absent what? nothing; it’s irrevocable forever? don’t think that’s likely. Absent due process? Well it will be reviewed someone? is that good enough? It’s going to take a lawsuit to find out. I think there should be a right of administrative mandate; i.e. going to court to challenge the “final administrative decision” rescinding the exemption, but the standard of judicial review on that is very limited, i.e., whether the agency action was arbitrary and capricious. Problem is the law sets a high (or low) standard, meaning CDC guidelines (contraindications and precautions).
    Anyway, for sure it will all play out in the courts if it becomes law, and long story short, the revocation of existing exemptions, IMO will be the strongest argument to be made.

  3. Recently, a nurse friend of mine explain titer measurements weren’t accepted in lieu of vaccinations in California…But if the issue is inoculation, and now with mandatory vaccination requirements, why shouldn’t titer levels be accepted? Children partially vaccinated could prove they meet the requirements without additional “boosters”–is this a possibility?

    1. That is not true though. I have an email from the CDPH from 2 weeks ago that specifically says that titers and a medical exemption ARE currently legal. Who knows in the future, what nonsense they will get away with but they ARE legal here. If you run into any issues, its because the school doesn’t know the law or the medical community, like the nurse, doesn’t know it either. You can’t just take a lab test to the school, but doctors CAN write ME’s for antibody titers proof of immunity.

  4. These articles are so depressing, I thought attorneys can find loop holes or give us hope for SOMETHING. can you write something that gives us a glimmer of hope or just tell us we’re screwed and stop writing.

  5. then it’s probably best if you stop reading what I write. Many people find what I write to be informative and are appreciative that someone is laying it all out for them. But I respect that different people have different sensibilities, so please stop reading my posts, and hopefully that will improve your mood.
    But you never can tell, there might be something I write in the future that won’t depress you. So maybe don’t write me off quite yet.

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