As the authoritative force in Employment and Labor Law today, we have, here at Miletti Law®, committed to creating enlightening and educative content, which aims to keep you, our unusually motivated® readers, #InTheKnow about issues that affect you and/or your businesses. Usually, the content features as videos that are posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM.

In pursuant of our goal to keep you educated about how to handle disability discrimination, we’ve prepared you yet another video titled “5 Steps To Prepare for Disability Litigation against Employers,” which is accessible through the link provided at the end of this blog.

In response to the part two videos on disability discrimination claim and disability discrimination cases, we’ve continued to receive an influx of questions and concerns from nurses in many states who would like to know what they should do in preparation for these COVID-19 vaccine mandates. While we’ve prepared for you a hands-on guide on how to go about this, we’d like you to be aware that due to the dynamic nature of these mandates (the law says one thing while the law on the vaccine mandate says another), it’s pretty hard to be sure. For example, just recently the governor of California redacted all those COVID-19 vaccine mandates and requirements, which could happen or not happen here at home in New York. Hope for the best, but be prepared for the unforeseeable and the unpredictable.

For now, we shall do with umbrellas until the rain stops. For those of you who are preparing for litigation, here are five key steps that you must take to prepared for your lawsuits and defend yourselves against your employer. However, this will strictly be applicable to those who want medical exemptions. We shall, after this one, prepare the same for those who opt for religious exemptions.

Without further ado, let’s dive right into these steps.

Make sure that you have a healthcare professional who is willing to write a letter on your behalf. Such an appropriate letter should indicate

  • Your particular medical condition (presuming you have a legitimate medical condition);
  • Why the jab is not helpful and puts you at continued and increased risk; and
  • What sort of accommodation you would need in order to participate in the work force just like everyone else.

Notify the HR in your workplace in writing that

  • You are in need of an accommodation; and
  • They should provide you with forms needed for your accommodation (you could hand in your doctor’s note beforehand if you like).

In response, you should get a letter from your HR in advance, which indicates that they shall not be paying your severance, unemployment benefits, PTO (Paid Time Off), and that following your refusal to receive the jab, it shall be presumed that, under the vaccine mandate, you have voluntarily resigned from your job.

As a PROTIP, if they do not have a form, use the Form WH-380-E from the United States Department of Labor. This is an FMLA (Family and Medical Leave Act) form, but generally acceptable for certifying if you need leave or not.

NOTE: You need to write back to them because the last thing you need is to have your employer having the last word and creating a narrative in which they play victim over your misery. Deny them the chance to act innocent and play the good corporate citizen employer trying to help protect Americans, while branding you an ungrateful, unvaccinated, and selfish enemy of the state.

You shouldn’t worry about how to put your rebuttal in writing and, ultimately, circumvent such a scenario because here at Miletti Law®, we’ve got your back with a bunch of templates that act as a guide on what to say and what to include in your response. In that regard, you’re welcome to reach out to us at the Contact Us page and we’ll make sure that you’re armed to the teeth.

If your employer sends out an email about the situation, about your failure to get the vaccine constitutes a “voluntary resignation,” you need to respond to that email, refute it, and tell them that you are, and will be, ready willing and able to work, just as you were for the past [__] amount of years, in your job. You have every intention on working, and if they are not willing to accommodate for your disability or other qualified exemption, then it needs to be clear that is their oppression of you, ignoring your rights, causing you harm, not the other way around.

Here, you’re making it clear that you’re “able,” “ready,” and “willing” to work, but due to this new condition that didn’t exist when you started working for the employer, you’re entitled to unemployment benefits and that you’re requesting accommodation because of your “disability/condition.” By saying that, you’ll be shielding yourself in line with the presumption under the nation’s Labor Law and constructing the narrative that you’ve been victimized by your employer and not the other way round.

Make sure that you pre-empt any performance related issues. Ensure that your record is clean and no discipline issues that can be held against you, as well as always work as if there was no deadline, as if nothing is wrong. NEVER GIVE THEM AN OPPORTUNITY to say you did something wrong or abandoned your job or organization. Attend to your duties until the last day when they’ve indicated that you shall be presumed to have resigned from your job.

On the day of the separation

  • Go to work as usual and start carrying out your duties as a clear indication that you’re not quitting your job;
  • If they tell you that you need to leave, ask them why—tell them, “so you are firing me for this?”
  • Make sure you tell them that you love your job—you have loved your job for [___] years, you have always worked and performed well, but for this instance, which is completely outside of your scope of employment (i.e. ultimatums to take mandatory vaccine or get terminate was certainly not within the scope of my training or experience), you are asked to make a choice to [either go against your health, go against your conscious and good judgment, go against your closely held religious conviction] and you are being essentially terminated;
  • Go back to doing what you are doing, and that is working as normal. Do not yell, do not scream, and don’t cause mayhem because you’ll be giving them a reason to say you were engaging in misconduct. Tell them that you’re ‘able,’ ‘ready,’ and ‘willing,’ to work, but if they are terminating you, then they should call management and have security escort you out;
  • Make sure you have someone to take pics or record a video, etc.

NOTE: In 99% of the cases, you will NOT keep your job. If they want to terminate you, they are going to terminate you. Be Bold, Don’t be Cowed! Irrespective of your fear of termination, you’ll be terminated. Unless you get the jab and give in, you will have to suffer. For this reason, we prepared this video as a way of preparing you such that when the time comes, you can (a) have the best shot at preserving your unemployment as possible, and (b) make sure that the narrative is correct, and (c) you do not look like you simply quitted your job.

We invite you to review the video at https://www.youtube.com/watch?v=xUPNOUH2Z3o

As usual, stay tuned for the next installment and always be #UnusuallyMotivated. In the interim, please reach out to us with questions and/or comments at the Contact Us page!

Unvaccinated, Unmasked, Unafraid, and Unusually Motivated!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.