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Ask the Labor Lawyer #2 (What to do about a vaccine mandate)

Ask the Labor Lawyer #2 (What to do about a vaccine mandate)

Question:  I am a health care worker.  My state has mandated the COVID vaccine in order for me to continue working.  What are my options?

Response:  Have you considered moving to Idaho?

Under federal law, there are two possible exemptions from a vaccine requirement:  (1) medical disability; or (2) sincere religious belief.  But your employer will not give you a vaccine waiver based upon your say-so alone.  For medical disability, you will need to find a doctor who supports your need for an exemption, and obtain a note to give to your employer.  For sincere religious belief, you will need to clearly articulate the religious basis for your objection to the vaccine.  Ideally, your pastor will be able to help you find and document a strong religious argument.

Even then, your employer is not obligated to automatically give you a vaccine waiver.  Instead, your employer will engage in a dialogue or “interactive process” with you, to see whether you can be “reasonably accommodated without an undue hardship.”  You may be asked to take additional precautions such as masks, face shields, and social distancing.  It is also possible that, if your patient population is deemed to be too vulnerable, your request will be denied.

For the deep dive, you can check the EEOC’s website at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K

If your request for a vaccine waiver is denied, you will need to do a serious cost-benefit analysis as to whether it is better to take the vaccine and keep your job, or refuse the vaccine and be fired.  I recommend talking through the various options with your doctor, pastor, financial advisor, and wise friends and family. 

As a last resort, you could ask for a medical leave of absence under FMLA (again, supported by a doctor’s note).  FMLA provides employees with up to 12-weeks of job-protected leave, meaning your employer cannot fire you (although they won’t be paying you either).  This could give you additional time to consider your options, and to see whether your state is inclined to change its policy.

May freedom prevail over rash mandates,

Laura, Labor Lawyer

Please note that this post does not constitute legal advice on your specific situation, and you do not have an attorney-client relationship with Laura.  If you have questions for Laura, please send to laura@redballoon.work.  Such questions may be used for general edification in this column.