Employee Exemptions: Part III
Navigating Workplace Hurdles
Please Share: Online Employee Religious Exemption Seminar with the nation’s leading vaccine rights legal expert, Alan Phillips, J.D. Sunday, Feb 26, 2023. Facilitator: Carmel Moody, CMT, MBA, Ph.D.
I. Employee Medical Exemptions
Any time a vaccine is mandated, medical exemptions apply. This general notion is supported by the 1905 Jacobson v. Massachusetts U.S. Supreme Court case. However, unlike religious exemptions, which have clear boundaries set out in decades of state and federal legal precedent, there are no clear national legal boundaries telling us what medical conditions qualify for a medical exemptions. So, requirements vary from situation to situation. Few if any states have a state law providing a medical exemption for employees. So, while we can say as a general matter that employees have a right to refuse workplace vaccines on medical grounds, there’s a lot of confusion about what medical conditions qualify and who gets to decide that. I once had a nurse client with letters from three different doctors each presenting a different medical contraindication, but her employer still required the flu shot. Fortunately, we were able to get her a religious exemption. But the question with medical exemptions isn’t whether there’s a medical condition contraindicating vaccination (frankly, anyone with a heartbeat has a medical contraindication as far as I’m concerned), it’s what medical conditions qualify in any given situation, and who gets to decide that (hint: it’s not us).
The CDC lacks authority to mandate vaccines or dictate exemptions for state residents directly, but in the absence of a law addressing workplace medical exemptions specifically—the case with most employees in the country—many employers defer to CDC recommendations, as that’s a safe position to take. If you can say, “we’re just following CDC recommendations,” you’re unlikely to be blamed for any problems resulting from that. But with healthcare workers and flu shots across the 2010’s, the CDC pretty much required an employee to be dead for two weeks to qualify for the exemption. Please forgive the dark humor, but there’s a serious point here. The CDC recommended granting medical conditions only where there was a past history of Guillain-Barre Syndrome (GBS) within six weeks of a flu shot or an anaphylactic reaction. That’s like putting up a stoplight at the intersection only after someone dies in a car wreck for lack of one. The six-week figure is arbitrary; it’s O.K. to get another flu shot if you developed GBS six weeks and one day after the last one? Fortunately, some employers have been more lenient with medical exemptions for covid shots.
But while there may be no medical exemption laws for most employees, the Americans With Disabilities Act (ADA) provides a way for some employees to refuse vaccines on medical grounds. In the same way that Title VII can function like a religious exemption law, Title I of the ADA can function like a medical exemption law for some employees.
The ADA covers a wide range of disability situations including workplace discrimination. A person with a “physical or mental impairment that substantially limits one or more major life activities” may be considered disabled under this law. Title I of the ADA is similar to Title VII of the Federal Civil Rights Act. Both apply to employers with 15 or more employees, require employers to provide a “reasonable accommodation” unless doing so would cause the employer an “undue hardship,” and require complaints against employers to be addressed to the EEOC. What specific medical conditions constitute a disability for ADA purposes is addressed in the law—federal statutes, EEOC regulations, and legal precedent. (Part II discusses the EEOC more fully; the federal government’s ADA website is ada.gov.) Bottom line, if an employee has a qualifying disability that would prevent immunization, the ADA may provide legal support for a medical exemption request. While an employer may choose to accept any doctor’s recommendation, those seeking to maximize immunization rates may reject all exemption requests not meeting strict CDC recommendations unless the employee has a legal right (or unless the employer cares more about maximizing immunization rates than the law; sadly, this does happen from time to time). Finally, employees who find themselves in a conflict over their rights may need to hire an attorney to assist them with exercising their rights. Many employers don’t care about their employees’ opinions about the law, so may not take seriously claims about an employee’s rights unless they come from an attorney with relevant legal citations.
II. Employer Exemption Forms
Many private employers create their own exemption forms to streamline the processing of their employees’ exemption requests. As a general matter, those seeking exemptions should only use a form when the entity mandating the vaccines—government or employer—provides one. The procedure for exercising an exemption is different for every exemption situation. So, generic forms on anti-vaccine websites may not meet the procedural requirements of your situation. Bottom line, if a form isn’t required, don’t use a form. Find out what the correct procedure is for your specific situation and then follow that procedure.
Next, there’s nothing legally improper with employers creating forms for exemptions. However, whether an employee is required to use their employer’s form to get an exemption is a separate question. We have rights under law—Title VII of the Federal Civil Rights Act, Title I of the ADA—that require employers to provide a “reasonable accommodation” on request, and those laws don’t say “unless your employer creates a vaccine exemption form.” But as a practical matter, it’s usually best to cooperate with your employer than to challenge them if you can get the desired end-result that way.
Unfortunately, many employers create forms without consulting their attorneys; and some attorneys misunderstand the unique aspects of vaccines with respect to the larger universe of medical treatments generally. This can lead to forms that are legally problematic in different ways. Two common problems are:
A. As to religious exemptions, they require clergy support. Some forms ask for a clergy member’s name and contact information, some employers require a letter from a clergy member. The problem is that clergy support is not a lawful requirement for a religious exemption. It’s probably not unlawful to request clergy information as long as providing it is clearly optional. Where one has clergy support, it can help validate the employee’s claim that they have sincere religious beliefs opposed to vaccines. But when a form (or exemption policy generally) requires clergy support, it crosses a legal line, because the law protects religious beliefs and practices whether or not believer’s beliefs are affiliated with an organized religion. What matters is the specific wording of any given form, so forms must be considered on a case-by-case basis. Please also understand that the purpose, legally, of any third-party support (such as clergy) is not about that person validating the employee’s religious beliefs, it’s about validating the employee’s sincerity, corroborating the employee’s assertion that the employee really has the beliefs he or she claims—that the employee isn’t making up religious beliefs for some underlying non-religious reason (for example, faking religious beliefs to avoid vaccine harm).
In some cases, when I’ve pointed out to employers that their clergy requirement is unlawful, they require third-party support more broadly—support from someone who may or may not be a member of the clergy. I don’t think that’s technically lawful, but I encourage employees to cooperate whenever they can, as that usually results in the smoothest process. Challenge employers when you have to, but otherwise, it’s usually best to pursue the path of least resistance.
B. Another common employer form problem is where the form requires the employee, in signing the form, to agree with the employer’s views on infectious disease. Such views generally amount to: “You agree that if we grant you the exemption, you are a terrible person for putting yourself and everyone else at risk…” As if one person’s non-exempt status makes everyone else’s vaccines stop working, right? They don’t use this wording, of course, but they might as well. They hope to scare people out of the exemption, or to punish them with guilt if they insist on the exemption anyway.
Employees reasonably fear that signing such a form could come back to haunt them in the future, that it could be used against them in some way. I’ve never heard of that actually happening, so feel the main purpose is to prevent or minimize exemptions. But employees long-term concern is, nevertheless, valid. They may have a “I had no choice” defense if something did come up, but it would be far better for nothing to come up in the first place.
But an employer requiring employees to agree with their view of reality to get an exemption is probably illegal. Curiously, it may violate free speech. The right to free speech includes not only the right to speak our mind—as long as doing so poses no serious risk of harm—it also includes the right to be free from being compelled to speak. A formal legal analysis fills a few pages, but the concept is fairly straightforward. If an employee is required to say they agree with something they don’t agree with to get an exemption, they are being “compelled to speak” for Constitutional free speech purposes. But there’s another wrinkle: We have Constitutional rights with governments, not with private entities. So, as a starting place, we don’t have “free speech” rights with private employers. But if an employer has sufficiently strong ties to government with respect to the issue at hand, vaccines, they can be considered to be a “state actor,” in which case Constitutional rights may apply. Since vaccines have multiple ties to government, there’s a compelling legal argument to be made that private employers must honor their employees’ free speech rights with respect to an employer’s vaccine exemption form. Therefore, a form that requires their employees to agree with their employer’s infectious disease beliefs is probably illegal, in violation of Constitutional free speech.
Ultimately, each form must be viewed on a case-by-case basis. Sometimes, the wording is clearly lawful or clearly unlawful; other times, it’s not so clear. Finally, getting an employer to address potential legal problems with their form, or with their policy in other regards, is often difficult to do without an attorney’s help. But with or without an attorney, the goal, when addressing a legal concern with an employer’s form or policy, is to get the employer to consult their own attorneys, as they’ll ultimately either do what their own attorneys advise them to do, or (sadly in some cases) whatever they want regardless of what the law says. But if their own attorneys advise them properly and the employer wants to be in compliance with the law, then getting the correct legal analysis to the employer’s lawyers can the desired result.
Alan Phillips, J.D.
Vaccine Rights Legal Expert
· Employee Religious Exemption Seminar: Sun, Feb 26, 2023
Facilitator: Carmel Moody, CMT, MBA, Ph.D.
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Alan Phillips, J.D., is the nation’s leading vaccine rights legal expert, the only one who’s worked fulltime with exemptions in all 3 dozen exemption contexts and sub-contexts (indeed, the only one who can name ½ of them), and who’s worked with clients, attorneys, legislators, and activists nationally for over two decades. vaccinerights.com