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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.