This Part II builds on Part I, so please read Part I first.
Part I discussed Title VII’s “reasonable accommodation” and “undue hardship” legal standards. Title VII also prohibits “disparate impact,” which can occur when an employer treats employees differently from other employees without a “business necessity.” Again, the terms are general, so researching legal precedent is needed to understand how courts have applied them to specific situations in the past, and to devise a legal argument as to how the terms should apply to any given situation now. But where employees with a religious exemption are treated differently from vaccinated employees without a business necessity, it may constitute unlawful discrimination in violation of Title VII. This may apply to the many restrictions discussed in Part I that are not “reasonable accommodations” (face masks, name badges, mandatory testing, etc.). In brief, it’s not a business necessity to restrict only exempt employees if the reason for doing so is that they are presumed to lack immunity, when the non-immune vaccinated employees—the ones whose vaccine didn’t work or whose vaccine immunity has waned to sub-protective levels—are not identified and given the same restrictions. (Seems obvious, doesn’t it?)
Next, employees throughout the country have been crying “HIPAA violation!” since flu shot mandates were phased in for hospital employees across the 2010’s. HIPAA, the federal Health Insurance Portability and Accountability Act of 1996, provides broad protection for health information. However, HIPAA doesn’t protect all health information; there are exceptions. Bottom line, it doesn’t protect an employee’s vaccination status with their employer. (For HIPAA protection details, see https://hhs.gov/hipaa/index.html.) Our vaccine status is deemed to have significant health implications to others in the workplace, so when viewed from the prevailing mainstream beliefs about infectious diseases and vaccines, it makes sense that employers would need to know their employees’ vaccine status as to any disease deemed to pose a significant risk in their workplace. Lawsuits where employees claimed the right to refuse an employer’s vaccine requirement on the broad principle of “I have the right to decide what to put into my body” lost—again, because one’s unvaccinated status is presumed to pose risks to others.
The real issue here isn’t bodily autonomy; it’s the fake science underlying the decisions made about autonomy. If being unvaccinated really did pose a health risk to others, and if vaccines really were safe and effective, we would want policies and laws to encourage vaccination to save lives. Of course, this isn’t the case. Ironically, our pursuit of exemptions—which I wholeheartedly endorse, as that can save your life—implicitly validates the underlying fake science driving corrupt vaccine policies. So, get an exemption if you need one, but if we do not also effectively address the underlying corruption, the exemption problems we face will continue to increase in number and severity, and exemption rights will continue to diminish until they eventually disappear altogether.
So, unfortunately, HIPAA doesn’t enable us to refuse vaccines required as a condition of employment or to avoid the restrictions forced on exempt employees. While vaccine information is medical in nature, the vaccination status of employees, to employers, is an administrative matter about managing safety in the workplace. Employers probably can’t, however, require employees to share copies of the personal health records on file with their private physician.
Next Topic: Many employers reasonably but erroneously see religious exemptions as a religious or spiritual matter. Religious beliefs are, of course, a deeply religious matter to the people holding them. But whether one’s beliefs qualify one for a legal right to refuse vaccines is a purely legal matter. Our legal system protects religious beliefs and practices. In order to do that, it must define “religion” for that purpose. Otherwise, any belief could be declared “religious” and instantly become a legally protected religious belief, which wouldn’t be fair or even make sense. This isn’t about telling anyone what they can or can’t believe—each of us gets to decide that for ourself. It’s about determining which beliefs are protected by law. So, evaluating whether one’s beliefs qualify for a religious exemption requires studying and then making informed judgments about how to apply the precedent to specific situations on a case-by-case basis. But many employers are confused about this. I’ve seen civilian and military employers delegate the processing of religious exemptions to chaplains who, despite the best of intentions, wrongfully reject religious exemptions, because they’re evaluating employees’ beliefs from a moral or spiritual perspective, which can be highly subjective, rather than applying the proper legal, objective standard. Unfortunately, Title VII gives employers the right to determine whether their employees’ requests for religious accommodation meet the legal requirements. The matter is further complicated by the fact that most people’s common sense approach to writing a statement of religious beliefs opposed to vaccines isn’t fully consistent with the legal requirements. Both employers and employees lack a clear understanding of how the law works with all of this. (See these articles and the Religious Exemption Manual for more information.)
Where the religious-legal confusion results in the denial of a qualifying exemption request, the matter may be resolved by explaining the law to the employer. As a practical matter, the explanation may have to come from an attorney to get the employer’s attention. Generally, employers don’t care what their employees think their legal rights are. Most are simply enforcing policies they believe are necessary to protect their businesses. Those employees who process exemption requests are just doing their job, and their job description doesn’t include “make exceptions for employees who argue law.” Once policies are implemented, changing them usually requires going up the ladder to a decision-maker with information the decision-maker will take seriously. That means they must see as a potential problem or threat to the company . Attorney letters come with an implied risk of escalation that could include a lawsuit, so that usually gets their attention. There is a critical distinction here: Employers respond to company risks, not to legal technicalities in and of themselves. Herein lies a simple principle that could add a boost to all our activism work. We might do better to consider more what matters to our target audiences instead of focusing solely on what matters to us. This isn’t about changing what matters to us, it’s about finding a way to make that matter more to them. Meet them where they are and lead them to where we want them to be rather than hitting them over the head with something they’re programmed to reject.
Next, when an employee’s request for a religious exemption is denied, the employee usually can’t sue the employer unless they first file a complaint with the EEOC, the Equal Employment Opportunity Commission. The EEOC is a federal agency created by the federal Civil Rights Act of 1964. When the EEOC’s involvement ends, the employee may then sue the employer if the matter is still unresolved.
The EEOC doesn’t represent employees, and they can’t force either party to do anything. But they often resolve conflicts, and that saves everyone the cost and time of litigation. There is no cost to employees, unless they hire an attorney to manage their complaint, which is often a good idea for those who can afford it. The downside is that EEOC investigations can take weeks, months, or even years to resolve; and the EEOC has only gotten more backlogged with the plandemic. But on receiving information showing possible discrimination within the scope of Title VII, they can investigate to determine whether unlawful discrimination has occurred. If they determine that discrimination did occur, they can work with the parties to find an acceptable resolution. In my experience, the EEOC does a great job with matters common to EEOC complaints generally over the long-term, such as what types of religious beliefs are protected by law. But they have failed miserably with some newer vaccine-specific matters such as the illegality of face mask policies and religious exemptions for clinical students (the latter being a topic I’ll address separately in a later article, but it does fall under Title VII). The EEOC never explains their reasoning on these matters, so I must assume that’s because they don’t have a legal analysis at all—that these rulings are political—as the legal arguments favoring the employees are clear and strong. Face masks don’t filter viruses. End of story. Two Canadian arbitration cases in the 2010’s came to the right decision after reviewing abundant scientific arguments on both sides. These arbitration cases applied a “reasonableness” standard just like the EEOC is supposed to do in Title VII cases. But there’s a corrupt agenda underlying and driving all of this. So, we should expect that, and in fact do regularly see, many scientifically and legally sound positions fail when they shouldn’t. Sadly, having the science and law on your side isn’t always enough. Our legal and political systems aren’t reliable because they are controlled by powerful elite who can force outcomes in their favor despite conflicting science and law. They do so selectively as needed to keep their overall agenda moving forward, which means we still get some wins despite the ongoing advancement of their agenda.
Finally, the EEOC has the right to sue employers to force them to comply with Title VII. They exercise that option with only a small percentage of the complaints they receive, but it’s an option they do exercise regularly. One case a few years ago ended with a hospital paying $300,000 and rehiring six employees who were fired for refusing vaccines on religious grounds. The EEOC also issues “discussion letters” periodically to provide guidance on policy and law regarding EEOC matters. Two such letters are the EEOC’s redacted responses to my own inquiries, providing valuable information about the application of Title VII to a variety of employee situations: Letter 1, Letter 2. Other EEOC lawsuit news and discussion letters can be found at the EEOC website.
Finally, another recurring issue is employer policies that require the employee to “voluntarily” resign if they refuse an employer-mandated vaccine. One can’t, of course, be required to voluntarily resign. I’m no unemployment law expert, but these policies are likely intended to enable the employer to avoid paying unemployment for firing employees. Regardless, these policies are probably illegal. But addressing them successfully may require having an attorney explain the law or getting someone from an unemployment office to reach out to them.
Upcoming Parts in this Employee Exemptions article series will discuss employee medical exemptions, employer exemption forms, and more! Stay tuned…
With gratitude,
Alan Phillips, J.D.
Vaccine Rights Legal Expert
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BIO: Alan Phillips, J.D., is the nation’s leading vaccine rights legal expert, the only one who’s ever worked fulltime with exemptions in all 3 dozen exemption contexts and sub-contexts (indeed, the only one who can name ½ of them), and with clients, attorneys, legislators, and activists nationally for over two decades. vaccinerights.com