By Mark Carey
Employers can now mandate all employees to get a Covid-19 vaccination as a condition of their employment without violating federal laws. This resolution was anticipated but it is unclear how the guidance will be followed after the population falls short of the so called herd immunity. On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance that allows all employers to require a Covid-19 vaccination in order to work, with two exceptions. Specifically, the EEOC guidance states for all employees entering back to the physical workspace, they must provide proof of vaccination. The guidance is just that, not a governmental mandate. The EEOC is the primary agency in charge of enforcing work related policies and statutes.
DIRECT THREAT – PRIMARY RATIONALE BY EMPLOYERS
In essence, the EEOC stated that if an employee refuses to show proof of vaccination, then the employer has the right to prevent the employee from coming to the physical workspace and terminate the employee if necessary. The primary rationale is that an unvaccinated employee poses a “direct threat” to the employer and its’ employees, which trumps the few employment rights employees already have. There are two exceptions. First, if the Covid-19 vaccination would interfere with the employee’s medical condition, including pregnancy, he or she has the right to request a reasonable accommodation under federal disability laws. Second, if because of religious reasons the employee does not want to become vaccinated, he or she again can request a reasonable accommodation from the employer. In both cases, the employee must provide supporting documentation that they qualify for the exemption. The employer is required to follow federal law and provide an interactive discussion regarding possible reasonable disability and religious reasonable accommodations.
WILL THE GOVERNMENT MANDATE VACCINATION TO WIN THE WAR AGAINST COVID-19?
Although I was interested in providing this newsworthy item, I was more interested in the future of how this guidance will be enforced once we have reached a national impasse where far too many employees refuse to vaccinate and the pandemic roils onward. Forget everything we now know, including politics, as these are unchartered waters. How do you require employees to vaccinate for Covid-19 against their will? Answer, by the force of the rule of law due to a national health emergency. I wrote about this issue recently, Employer Mandated Covid-19 Vaccinations- Can They Do that?. Remember, your individual rights are only as strong as the country you belong to, but if the country is under attack – guess what- the government takes over to defend us all. The governmental action will not come from the EEOC, but from an Act of Congress under the War Powers Act (War Powers Resolution of 1973).
The federal government will pass legislation requiring all employees to become vaccinated in order to finally bring an end to the pandemic and the overall infringement on our personal freedoms. I predict this will happen once we see a resurgence of Covid-19 cases in the unvaccinated population and it will be riding tandem with the end of the vaccination efficacy period for which data is still emerging, i.e. the date when the current Covid-19 vaccines wear off. These events might also coincide with a substantial decline of the Covid-19 vaccines efficacy against new highly contagious variants. If this perfect storm hits the U.S., consider it an act of war and the federal government will institute an unprecedented vaccination mandate requiring all employees, including the non-working population, to vaccinate. Our government is immensely powerful indeed, regardless of who is in power, and it can declare an act of war against foreign enemies; we just have not done so since 1942. It is not impossible. Covid-19 is that foreign enemy. Prepare yourselves, as this may get uglier before the enemy is finally defeated.