From Alan Phillips, JD, the nation’s leading Vaccine Rights legal expert.
Employee Exemptions: Some Clarifications
Some well-meaning, trusted community members are disseminating erroneous information about covid-19 vaccine exemptions for employees, so I’m presenting the information below to, hopefully, clarify some misunderstandings.
I’ve helped 100’s of healthcare workers nationally get religious exemptions to flu shots over the past 9 years, so am well-versed on the legal and practical concerns. (No one else has extensive experience in this arena.)
(<vent mode on> Why is our community so quick to turn to alternative MD’s and PhD’s with science matters, yet unwilling to reach out to alternative legal experts with legal matters? <vent mode off>)
Here are the critical points: Title VII of the Federal Civil Rights Act of 1964, which applies to employers with 15 or more employees, provides legal remedies for employees whose employer discriminates against them in a variety of categories, including, for our purposes, religion.
A few states have vaccine exemption laws that apply to employees, but most state exemption laws apply to only to daycare, school, and college enrollment.
Federal regulations implement Title VII statutes, providing rules and procedures for enforcement of Title VII violations. Title VII creates, in effect through anti-discrimination laws, a religious exemption to vaccines in the workplace.
It is not an exemption law per se; it is an anti-religious-discrimination-in-the-workplace law that can function, for our purposes, like a religious exemption law.
I’ve used it to help clients avoid mandatory TB tests, too, but its application could address any religious belief or practice in conflict with an employer policy (as well as other listed categories of discrimination).
When an employee requests “religious accommodation” due to an employer policy that conflicts with the employee’s religious beliefs or practices, the employer must provide a “reasonable accommodation” unless the employer can show that doing so would cause the employer an “undue hardship.”
The precise meaning of these phrases varies from situation to situation and is determined by applicable legal precedent. Proper understanding and application of legal precedent generally requires formal legal training and experience (not unlike complete understanding of medical studies may require science training and research experience).
By law, each request for religious accommodation must be considered individually, on a case-by-case basis. So, there is no one-size-fits-all “answer” to employee religious exemptions.
However, some generalizations may nevertheless be made. Employers have the right to scrutinize employees’ religious beliefs to determine if they meet the legal requirements.
However, in practice: * Many employers misunderstand those requirements, and so may reject legally qualifying exemption requests; * Most employees misunderstand the law and so make exemption requests that fail to meet the legal requirements; * Neither of these first two points is due to a lack of intelligence. Rather, they are due to people’s failure to educate themselves on the law before proceeding.
In both cases, common sense thinking usually doesn’t fully align with the law. Over the years I’ve seen:
* Most hospitals create unlawful (overly restrictive) exemption policies. Most employees don’t realize this, so they may fail to request an exemption, believing they don’t qualify when perhaps they do.
* Many employees don’t want a vaccine but will get one anyway to avoid making waves (fear of losing their job or other retaliation), or to avoid having to wear a face mask, not realizing that the face mask policies are illegal.
* When professionally confronted, most hospital administrators made some, but not all, policy corrections needed to bring their policies fully into compliance with the law.
* Hospital administrators know their employees are unlikely to sue them. So, some knowingly keep illegal policies, because they know they can get away with it (and they usually do).
* Employees can complain to the EEOC (Equal Employment Opportunity Commission) for free, if they believe their employer has unlawfully discriminated against them. The EEOC will usually correct common issues such as shooting down an employer’s illegal “clergy support” requirement for a vaccine religious exemption, but they support hospital administrator’s unlawful policies in many other regards—e.g., they endorse blatantly illegal face mask policies; and deny the application of Title VII to students doing clinical work, despite their own attorneys’ publicly stated contrary assertions on the matter.
Employers can lawfully deny a religious exemption request if they can show that doing so would cause them an “undue hardship.” This usually means “will cost a lot of money,” but is not necessarily limited to that.
In practice, most hospitals ultimately allow religious exemptions for flu shots, but refuse religious exemptions for other routine vaccines such as TDaP and MMR. In recent years, hospitals have increasingly required childhood vaccines, instead of just flu shots, as a condition of employment.
This point is critical. If exemptions are already being denied for routine vaccines, do you really think employers are going to allow exemptions for emergency covid-19 vaccines? Not a chance. (But if some do, it will be a temporary policy. Mark my words…)
Allowing a religious exemption for only some routine vaccines doesn’t make sense to me scientifically, and therefore is arguably unlawful, but vaccine policy has never been based on real science. So, why should we be surprised when that continues to be the case?
This is perhaps the most critical point: EMPLOYERS CAN DO WHATEVER THEY WANT, LEGAL OR NOT, AND MORE OFTEN THAN NOT, THEY GET AWAY WITH IT.
The primary two reasons they do this are that their agenda isn’t legal and they usually get away with it. The primary two reasons they *can* do this are that few employees will fight them (costs too much to hire an attorney, fear of retaliation); and the corrupt legal system will more often ignore the law and rule in the employer’s favor than it will rule against big pharma in favor of a single employee.
It’s not this way 100% of the time, but pharma doesn’t need 100% to successfully advance its agenda.
THE BOTTOM LINE: Federal civil rights law is not likely to help anyone avoid a covid-19 workplace requirement. If employers are already successfully refusing exemptions for routine vaccines, doing so successfully with emergency covid vaccines will be a piece of cake.
If an employer does allow religious exemptions initially, that’s likely to be a temporary condition, as the stated agenda by Mr. Bill “The World Obeys Me” Gates is: “no exceptions.”
For information and resources concerning employee exemption rights, see vaccinerights.com
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