What Employers Can and Cannot Force Their Employees to Do In COVID Pandemic World

What Employers Can and Cannot Force Their Employees to Do In COVID Pandemic World

I am getting many emails, VM’s comments from employees telling me they are being forced to get the Covid shot or tell their bosses things which the employee thinks violates their privacy rights, they feel they are being discriminated against for not having received the shot. That is a lot of ground, some of it is still unsettled because the shots are still not full FDA Licensed, and as you all know, the feds take the position that federal law can’t mandate taking a EUA product. I know some of you think, believe, or hope that those federal pronouncements bind state and local governments, but I am not so sure, and operatively, from what I am seeing, I don’t think some state and local governments agree with the federal position, probably resulting from a pesky thing called states rights (but those in the know would come back with filed preemption, but that’s more technical than I want to get into here).

Another point I make often but is worth repeating because it is relevant to understanding your rights as an employee is that your constitutional personal freedom rights, whatever they may be (and I do have a more narrow view of those rights under current law than many of you), apply to limit the federal government’s actions against you, and the state and local governments’ action (since the civil war era when the 14th amendment was passed which applied the first 10 amendments to the state and local government). Employees who work for government agencies have those constitutional protects, however they may apply in the employment context. However, your constitutional rights protecting you against your private (i.e. non-governmental) employer are basically zero. Whatever protection employers have, originates from federal or state statutes, most notably employment laws, but also include OSHA and maybe some other agencies.

The Feds have the EEOC which enforces federal employment law, and it publishes an explanation of your rights against employers on all issues dealing with COVID. Most of your questions can be found at its URL dealing with these issues. Here it is.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

If you have a question about whether your private employer can and cannot do, chances are it and the answer is here.

As to the big issue, can your employer force you to take the shot under federal employment law, if you read my posts, you all know about the reasonable accommodation requirement. As a reminder here is what the EEOC says about it.

“K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Implicit in this is that a private employer’s mandatory COVID vaccine policy is legal under the laws which the EEOC enforces which are federal employment and employment disability laws. As indicated theoretically at least, other state or local laws or authorities might have something else to say. So this is the state of the law unless and until it is successfully challenged. (and I think such challenges will continue to be filed, but it is an uphill battle).

Everyone vaccine and privacy concerned person should read this information very carefully. There has only been one lawsuit result that I am aware of which challenged a governmental mandate for a EUA product on government employees (teachers in New York City public schools) and that case did not result in a finding that the mandate was illegal, but that was largely for technical, nonsubstantive reasons. In terms of a lawsuit against a private employer for mandating a EUA vaccine, whatever basis there might be to such a suit, for reasons stated in this post, it is not going to be a federal constitutional basis.

That’s what I have for you. Sorry, I can’t take calls and don’t expect email responses from me due to the press of business, but I do try to answer comments to posts.

Rick Jaffe, Esq.

10 thoughts on “What Employers Can and Cannot Force Their Employees to Do In COVID Pandemic World

  1. They’ve done a great job at testing out “mandating” EUA products such as face coverings and PCR tests they figure most will obey and get the EUA covid injection without a real fuss and certainly without legal pushback as where has been legal pushback for the other EUA items we’ve been contending with over a year now?

    1. I don’t think masks are EUA approved. At best, it’s an off-label use of a medical device. The whole EUA argument is going to disappear once the vaccines are fully licensed, which as I have stated in prior posts, I would expect to happen prior to the beginning of the school year just because it takes the whole legality of mandating EUA vaccines off the table. To be fair, on one hand, there are obviously no long-term safety studies, but on the other, there can’t ever have been an investigational drug that was given out in several hundred million doses prior to approval/biological license. And, in pandemic times, I don’t think there is any such thing that health care providers don’t know about VARERS. The real issue is what do they say about a drug with the relatively small (compared to the number of doses administered) vs the thousands of deaths associated with (not necessarily caused by) the drug. Greater good and warning label I think will be the implicit if not explicit rationale.

        1. not really the same thing as an EUA new PCR test or a covid vaccine, though technically you are right. In part the difference is medical devices need some kind of device approval even if they are the same as what’s already out there (510k substantial equivalency). I think that is waived because of the pandemic. The point is that marks for medical purposes are approved/cleared at least the one’s where the FDA had given full clearance to. Because of the shortages, they cut some red tape as to who could manufacture this medical device without submitting a 510k application, would be my guess as to what this all means.
          But equating EUA of a biologic or a test to a common medical thing in use for I guess a hundred years seems pointless to me, except if you don’t like wearing masks, which I assume you and most reading my posts don’t. I don’t either, but I do when I am in stores because that’s the law and store policy.

  2. Hey boss man! What about the fact that vaccine information is considered protected health information (PHI) under federal law, as such the employer/university/etc must reasonably protect the information for privacy purposes. Access to PHI is limited to certain employees (HR employees), supervisors are NOT entitled to see and/or collect PHI. Therefore, a supervisor may not be authorized to question employees as to their respective vaccination status. Furthermore, I would hypothesize that HR may be reluctant to collect vaccination data because the data must be protected and cannot be used in discriminatory manner. Therefore, if an employer required a medical procedure of their employers as a contingency of employment could there be a legal grey area in terms of the disclosure of said information and to what extent could this permeate to the benefit of the individual? Thanks!

  3. I think the EEOC discussion says that a vaccine is not a medical procedure if I’m not mistaken.
    This is the EEOC’s position, which the courts will defer to unless the statute is ambiguous. Read the EEOC thing carefully.

  4. Just how does the laws 1. address the situation as applied under the Americans with disabilities if the believe or treat the person as if they have a handicap or disability. 2 there are other methods of self protection which creates the right of for the individuals. A couple of examples. The evidence provides enough grounds that using over the counter antiseptic mouthwash, nasal spray/flush and liquor to prevent or to variolate the viral loading giving a person natural immunity. 2 Again by the CDC’s own reports we have reached potential full HERD IMMUNITY h ow can an employee order you to be vaccinated when they could have already been naturally vaccinated . 3. The government agencies and medical community have known for many years the Herd Immunity is the desired result in any disease causing an epidemic or pandemic. The facts and figure reasonable establish that HI has been achieved and there is no logical need to require a person to be vaccinated for immunity considering that the great majority of the population have already been infected and now have natural immunity. It seems that their claims and concerns of public safety have been addressed and nullified. We now have at least 3 choices that by our rights we can choose which one or combination that we choose to do.

  5. What about AB327? From what I have read it would prohibit employers from a covid vaccine mandate. I think it’s been a couple of months since this was submitted. I work for UC and I have to submit my plan by 7/15 of either covid vaccination certificate, allowing them to access my medical record to confirm I’ve been vaccinated,or notify them that I plan to file a medical or religious exemption. I’m worried I am going to be out of a job if a religious exemption isn’t approved. Out of a pension, medical benefits at retirement, etc.

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