Good day to all my unusually motivated, free thinking individuals, currently held hostage in the Peoples Republik of New Yawk!!

I hope you all had an awesome Christmas Celebration, and 400 people in your home, didn’t give a shit about social distancing and enjoyed your holiday immensely!

In this week’s installment of the UNUSUALLY MOTIVATED blog, we look to the clusterfuck known as mandatory vaccinations! While we have ranted about this in the past with Jacobson, see our blog dated 11/26/20, titled “Gorsuch To Emperor Cuomo – Stop Using Jacobson, You Horrible Little DICtator” and we have discussed that the Supreme Court would not be so happy to see Jacobson being used as the basis here. The Court was very clear about how they looked at Jacobson in light of the present:

Jacobson hardly supports cutting the Constitution loose during a pandemic. Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do

But we have already debated, so let’s leave Jacobson in the back for now…

As we are getting closer and closer to the wide spread implementation of the COVID vaccine, it is becoming more and more clear that politicians are beginning to encourage mandatory vaccination on all Americans. Even while a majority of Americans oppose mandatory vaccinations as of 12/18/20 (59% Oppose, 41% Support), this hasn’t stopped the news media and our political class from endlessly forcing pro-vaccination propaganda down our throat.

While the Emperor has openly stated, as recent as 12/2/20, “you can’t mandate that somebody takes the vaccine,” he has actively taken steps in favor of mandating vaccinations, and even members of his staff have been working with members of the State Assembly to mandate vaccinations (the doublespeak is strong in this one). See Senate Bill A11179, spearheaded by Democrat Assembly Member Linda Rosenthal, which states that “the Department shall mandate vaccination for all individuals or groups of individuals who, as shown by clinical data, are proven to be safe to receive such vaccine.” This bill makes no exception other than a “medical exemption from a licensed medical professional,” so you can forget about the favorite, “religious exemption.”

The CDC, while not an agency that promulgates rules or laws, did recognize the prevalence of exemptions, and seems to take a very neutral view on it. They simply discuss that exemptions do exists in states and localities, that they apply in certain situations, and that if there is a true exemption, then it is to be followed. While they would like to see 100% vaccination, they don’t seem to take a draconian view on it according to their web literature.

The media has endlessly driven the narrative that mandatory vaccines are going to be the future here. As recent as 12/7/20, CNBC has pushed the narrative that employers can force employees to get vaccinated. If employees don’t like that—they can get fired. CNBC has even suggested “offering your employees incentives” to get the vaccine—for instance, “telling your employee if you get the vaccine, you don’t have to have your temperature taken every day, you don’t have to wear the same level of PPE.” The most offensive one to me personally is “offering your employee a cash bonus if they get inoculated.”

Aside from the fact this is mind-numbingly stupid, insulting to a individuals integrity (really—a small cash bonus, or not wearing as muchPPE is what will make you move from your principles?), and assumes people are gullible idiots, a bigger concern I have for employers is the amount of fuckery that is going to come along with employers mandating vaccinations.

The EEOC stepped in to try to clear up some of the ambiguity and confusion, but alas, they did nothing but contribute to the confusion and now make me believe that any employer who tries to make this mandatory, will all but certainly face some serious litigation down the road.

Let’s see what the EEOC has to say about an employer MANDATING VACCINES.

INTRODUCTION

On 12/16/20, the EEOC issued technical guidance on how to implement COVID policies in light of the currently existing protections employees have under the Americans with Disabilities Act (ADA), Rehabilitation Act (RA) Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA).

This article only looks to discuss federal laws, however, all States have their own version of these laws. As a general rule, you can apply these to each state where you run your business (i.e. New Jersey has the Jersey Law Against Discrimination (LAD), New York has the New York Human Rights Law (NYDRL), etc.)

These rules will apply to those with 15 or more employees, but rest assured, if you have less than 15 employees, the state has a counterpart to this. So again—pretend that these apply the same.

NOTE: Under our current system, due to Federalism concerns, the federal government may never have greater restrictions than the state. Federal law is supposed to be marginal, or minimal in nature, while the states are free to increase protections for people. As example is readily found in all of the state’s anti-discrimination laws— most states, particularly the “blue” states—will have greater protections, and more categories of protections, under their anti-discrimination laws than the federal government. This is by design, to appeal to our current notion of Federalism.

Because the guidance is very long, far longer than this blog should cover, I am going to just focus solely on mandatory vaccinations.

MANDATORY VACCINATIONS V. PRE SCREENING VACCINATIONS.

First, the Vaccination itself is not a medical examination under the ADA. The Pre-Screening Vaccination is.

The CDC wants health care providers to ask certain questions before administering a vaccine to ensure that there are no medical reasons that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries?

YES. These are known as “Pre-Vaccination Medical Screenings.” A Pre-Vaccination Medical Screenings is a Medical Examination under the ADA and as such, must be carefully designed and asked in a particular way. The problem is that this sort of question will elicit information about the employee’s disability, and that is prohibited under the ADA.

Therefore, in order to pass legal muster, the employer must ensure that the questions being asked are qualified as legally compliant disability-related screening inquiries, that are “job-related and consistent with business necessity.” If an employee refuses to respond, and you want to terminate the employee, the employer will need to show, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.

POINT 1 

If you require vaccinations, you are recommended to require Pre-Vaccination Medical Screenings. If you require Pre-Vaccination Medical Screenings, you will need ask the questions in a way that is job-related and consistent with business necessity. If you reject an employee from employment, you will need to show, on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.

The guidance answers the question, what happens if an employee says they have a medical condition which restricts them from getting the vaccine?

The employer needs to be careful that asking for proof, and any subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the ADA standard that the questions are “job-related and consistent with business necessity.”

On the flip side, say the employee says they were already vaccinated. The employer can accept that, but if the employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy, or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA. In other words, an email or letter from the doctor or pharmacy is fine.

POINT 2 

If the employee says they can’t get vaccinated due to medical reasons, and you ask for proof, you are best to take whatever they give you in good faith, unless it looks unusually suspicious—saves you the headache.

Employee Refuses Vaccine Based on Disability.

Employee says they have a disability and are unable to get the vaccine. What does the employer do? The employer could just take their word for it, in good faith (which is what I would recommend), or if the employer dismisses or terminated the employee, they will need to take certain precautionary measures to avoid litigation in the future.

Assume the employer terminated the employee for not having a vaccine.

The employer must show that the unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers are encouraged to conduct an individualized assessment of each candidate looking for the exemption, of 4 factors in determining whether a direct threat exists:

  • The duration of the risk;
  • The nature and severity of the potential harm;
  • The likelihood that the potential harm will occur; and
  • The imminence of the potential harm.

The conclusion would have to show that the unvaccinated individual will expose others to the virus at the worksite.

Once the conclusion is that the employee is a direct threat, the employer must provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).

This is basically the standard test used to determine if a reasonable accommodation is possible, using an interactive process, to ensure that the individual with the alleged disability can work as any other employee.

Brief Note on Undue Hardship.

The EEOC guidance states that “Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer.” This is not true. It is not just “more than de minimus” costs.

Quite the contrary, for an employer to claim an UNDUE HARDSHIP, it is a difficult burden. See 29 C.F.R. 1630.2(p). Let me save you the struggle of finding the law—I’ll publish it here.

Undue hardship —

  • In general. Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity, when considered in light of the factors set forth in paragraph (p)(2) of this section.
  • Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:
  • The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
  • The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
  • The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
  • The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
  • The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

I have read case law that has held that the only de minimus standard was where the employee needed to establish a “prima face” burden to prove that (1) she engaged in an activity protected by the Americans With Disabilities Act; (2) the employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity. See Stuevecke v. New York Hosp. Med. Ctr. of Queens.

As someone who DEFENDS employers, I wish I was held to a de minimus standard to show hardship. Lol. I would have won a lot more cases in my lifetime on summary judgment.

So back to it– this guidance is only for those who are actually coming into the office. The EEOC has stated that if they are able to “telework” you may not ask many of the below questions.

Also, what will become increasingly difficult for employers, is the fact that COVID is seen as a “direct threat to the health and safety of others” in the work place. Never mind that there is a 99.9% survival rate, or that 80% have NO SYMPTOMS at all. Just the fact that someone has COVID in their system, they are a “direct threat to the health and safety of others.”

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

This is going to be a tremendous burden on employers, because (a) how do you know what is in someone’s system at any time? (b) are you supposed to have someone on staff for daily COVID checks? Weekly saliva testing? How do you manage this?

Also think about the implications of this position.

NOTE: The concept of whether or not COVID is a “direct threat” is currently being litigated as I am writing this. There is a case in the District Court of Pennsylvania, Pletcher v. Giant Eagle, where Pletcher challenged the mask policies of Giant Eagle. Giant Eagle argued, amongst other things, that there can be no reasonable accommodation for anyone with a mask simply because by letting someone in the store without a mask is a direct threat to the health and safetyof others in the store. Again, this is hotly debated as we speak and the Court will rule on this later on in 2021. But I can tell you right now, if the position that someone in the workplace without a mask on a direct threat to the health and safety of others, even if they have no trace of COVID in their system, it’s going to be a tremendously difficult burden to prove. Additionally, this will almost guaranty spark more fights than necessary with employees who would be offended (I know I would). Also, think about the implications of this concept—that just the particular characteristic existing makes it a substantial and direct threat—because once we apply this to (a) company vehicles that create exhaust fumes, (b) company parties with liquor available, (c) even smoking a cigarette outdoors (second hand smoke), you essentially have an endless control mechanism as the test would still fit perfectly.

POINT 3

If your employee refuses the vaccine due to a medical disability / exemption, you can either take their word for it, in good faith, or you can request documentation, however whatever they give you, so long as it isn’t ridiculous, you can accept it (I’ve seen ridiculous doctor notes in the past— you will know when it is 100% full of shit).

Employee Refuses Vaccine Based on Sincerely Held Religious Practice or Belief.

We need to first point out what it means, from a legal perspective, what is “religion.”

An individual’s set of beliefs will meet Title VII’s definition of a “religion” if they are sincere, meaningful, and occupy a place in the life of an individual similar to that filled by organized religions’ belief in a supreme being. A belief in some form of deity, or God, is not required for Title VII protection, as reflected by the courts’ recognition that atheism is a religion. Section 12 of the EEOC Compliance Manual states that “religion” under Title VII includes both theistic beliefs and practices and non-theistic moral and ethical beliefs. See EEOC Compliance Manual § 12-I(A)(1).

You would be surprised what is a religion in this Country according to the Court —Creativity (See Peterson v. Wilmur); Veganism (See. Chenzira v. Cincinnati Children’s Hospital), “Onionhead” (See. EEOC v. United Health Programs of Am., Inc.), and even hairstyle in NYC.

Title VII’s broad definition of “religion” leads many courts to resolve disputes in favor of coverage. As a result, the grounds on which an employer can challenge an individual’s religious beliefs are typically very narrow.

With that as a backdrop, the guidance states that once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.

The EEOC makes an incorrect claim, undue hardship is more than a de minimus burden, but the EEOC goes on to say that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

POINT 4 

The EEOC suggest that if the employee states that they may not get the vaccine based on a sincerely held religious belief, the employer SHOULD ORDINARILY ASSUME that the employee’s request is sincere.

So I would like to be clear to all my friends in business circles—be very careful about requiring mandated vaccinations on your employees, with firm policies that are “get vaccinated, or get fired”—I promise there will be many troll plaintiff attorneys chomping at the bit to sue you into the ground. The EEOC will be no help.

But never fear, Vinny is here—when that first lawsuit comes in, you let me know—give our offices a call today, and we’ll be more than happy to slap down whatever is causing you grief.

What we don’t win in the Court Room, we’ll win in the parking lot outside!

As usual.. your line up of case law and sources are as followed.

Yours in love, law and lifts.

Vinny Miletti

The Most Jacked Attorney in NYC.