In a free nation, the concept of “shots required or be fired” seems a frightening proposition.
Lately, the email I receive more than any other goes something like this:
My employer has mandated that I receive the covid shot. They told me that I will have to wear a mask if I don’t get it. Isn’t that discrimination? Isn’t this also illegal since it’s only authorized under an EUA and not FDA approved? And isn’t it a HIPAA violation for my employer to demand that I reveal my vaccination status?
Let’s start with the last question first, which is the easiest one to answer: No. HIPAA only prohibits “covered entities” (e.g. health care providers, health insurance companies/plans, health care clearinghouses) from disclosing confidential health information, and from maintaining it in a way that could compromise confidentiality and security. Nothing in HIPAA prohibits a person, or even a HIPAA covered entity, from asking you for your confidential health information. Think about it. Every time you see a new doctor you are required to fill out a form providing your complete medical history to the doctor. You can refuse to provide it, but the doctor can also refuse to treat you, as doing so could actually be dangerous to your health without full knowledge of your complete medical history. You can also refuse to provide your employer, or anyone who asks, with your medical information, but there may be consequences. More on that in a minute.
What about the fact that the covid shots have only been granted an Emergency Use Authorization (EUA), so they are not FDA approved? Isn’t this grounds for a lawsuit? Again, the short answer is, no. First, the relevant statute, 21 U.S.C. § 360bbb-3, does not (contrary to popular belief) actually prohibit employers from mandating an EUA product, such as the covid shot. It simply states that the Secretary of Health and Human Services (HHS) must establish:
Appropriate conditions designed to ensure that individuals to whom the product is administered are informed—(I)that the Secretary has authorized the emergency use of the product;(II)of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and(III)of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
This means that this informed consent and right to refuse is just one of the conditions that the Secretary of HHS must place on the issuance of an EUA. Read the language again carefully. It does not say that employers must notify employees of the right to refuse. It simply says that the person to whom the shot is administered must be informed of the right to refuse–presumably, by the person administering the shot. Even in workplaces where the shot is being offered in a makeshift “clinic,” this would be satisfied simply by the clinician administering the shot advising (either verbally or in writing) that the person has the right to refuse it. Moreover, a clinician’s failure to do this does not mean that the shot cannot be administered. It simply means that that particular clinician has not fulfilled that condition placed on the issuance of the EUA. Even were this to be challenged in court, it is unlikely that the EUA would be revoked, since the Secretary still fulfilled his duty to place this condition on the issuance of the EUA. In other words, all that’s required is that the Secretary place this condition on the issuance of an EUA, not a showing that every person who administers the shot is complying with the condition.
Even less likely is that employers would be ordered to stop mandating the shot as a condition of employment. All of the “talking head” public health “authorities” have said that the receiving the shot is the best way to keep prevent people from contracting and spreading the virus. Regardless of whether this is true, that’s what they are saying. Employers are not expected to be public health experts, and a court would likely give an employer a lot of leeway in relying on the advice of the individuals who are (or, at least, hold the title of) public health experts. Courts are also extremely deferential to the judgment of administrative agencies such as the Equal Employment Opportunity Commission (EEOC), which has already issued guidance stating that federal discrimination law does not prohibit employers from mandating that all employees receive the covid shot, so long as employers provide reasonable accommodations for religious and medical exemptions, in appropriate circumstances. In the same guidance, the EEOC states that employers may mandate masks, require employees to undergo temperature checks and covid tests, and collect medical information from employees. While the EEOC guidance is not law, in my opinion employees who flatly refuse to submit to one or more of these workplace requirements could face serious discipline up to and including termination of employment, and the law would not be on the employee’s side in a wrongful termination lawsuit. The other, more obvious problem, is that one or all of the covid shots are likely to receive full FDA approval before any of these lawsuits reaches its conclusion, rendering the EUA argument moot.
But what about an employee who requests a religious accommodation, or an accommodation for a disability, and is denied? Does that employee have a case? Maybe. This is the one scenario wherein I think an employee who suffers an adverse employment action (such as a suspension without pay, or a termination of employment) may actually be able to prevail against his/her employer in a discrimination lawsuit. If, for instance, an employer issued a blanket denial of an accommodation request, without even trying to explore options for the employee to continue working without the receiving the shot, the employer would almost certainly be subject to liability. If, however, the employer offered mask wearing as an accommodation, in my opinion most courts would view that as a reasonable accommodation. The situation would be complicated, of course, if the person also requested an exemption from mask wearing on religious or medical grounds.
It’s important to note that in any case, an employer has a right to request documentation (within reason) to support one’s request for a religious or medical accommodation, such as a letter from clergy or a note from one’s health care provider. This is not, as some have suggested, an illegal intrusion into one’s privacy. An employer has the right to request this information to ensure that the employee is being honest, and not just inventing a religious or medical exemption as an excuse not to get the shot because, in reality, the person is just uncomfortable with receiving it due to “safety concerns.” Should having safety concerns be enough to refuse a workplace mandate to receive the shot? I think so. But the law says differently.
Remember that each accommodation request must be examined by the employer on a case-by-case basis, so what is a reasonable accommodation for one person may not be for another, and what is a reasonable accommodation for one employer may not be for another. Every workplace is different. Every job is different. Some employers can allow an employee to telework as a reasonable accommodation, without imposing any undue burden or hardship on the employer. For other jobs, such as police officers, firefighters, factory workers, and others, telework is obviously not a reasonable accommodation. In such cases, masks would likely be viewed as a reasonable accommodation.
Is all of this fair? Is all of this logical? Is all of this what we should expect as citizens of a “free” country? Perhaps not. But the best case scenario, as I see it, is that we establish clear legal precedent that says employers must honor all legitimate requests for religious and medical exemptions from the covid shot. Either that, or we lobby Congress to amend Title VII of the Civil Rights Act of 1964 to include “vaccination status” as a protected class (though even that may not be enough, given the covid shot’s questionable status as a “vaccination”). In any event, let me be clear: I am vehemently opposed to employers mandating the covid shot as a condition of employment, or continued employment. In a country led by people who are purportedly champions of choice and bodily autonomy, one should never be faced with choosing between a job and a jab.
Nothing in this post should be construed as legal or medical advice. The opinions expressed herein are those of the author and not of the CT Freedom Alliance, LLC, or any other organization. Consult an attorney for legal advice or representation.