Anti-vaxxers are in a huff. My office is getting some insistent callers who just don’t buy the legality of mandated vaccination. These employees are clearly convinced that their personal freedom [T]rumps the public health. When I advise employees that the employer’s duty to provide a safe and healthy workplace prevails over their private concerns about vaccine safety, it’s a legal position they simply will not accept. For them, the issue is not the safety of vaccine, which has been medically upheld, and fully approved by the FDA, but a deeper distrust that government is a dark force infringing on personal liberties. The advocates for this personal freedom don’t grasp that the unvaccinated person is a carrier who infringes on the health and safety of other employees. Beyond putting their own lives at risk, the anti-vaxxer may carrier the more virulent Delta variant causing breakthrough infections for those already vaccinated.
Callers who want to know “Can they do this?” know already that the consensus of legal experts is, “Yes, they can.” What the callers want is a legal roadmap for finding a way around vaccination that will fit within one of the two exceptions: religious grounds and disability. There seems to be a widespread religious revival that coincides with the push for vaccination. Persons in apparent good health are in search of medical conditions and doctors that will exempt them based on complications from the vaccine. Some pastors sign religious exemption letters on demand. The gaming of the public health system strains the hospital system with new and breakthrough infections. It also slows the recovery of the economy.
Personal liberty has never been absolute. Constitutional law decisions are exercises in weighing competing demands. But for many anti-vaxxers, the calculation is no calculation at all. It’s my freedom, and the world be damned.
But for the legitimate religious or disability accommodation claim, employers are required to provide reasonable alternatives to vaccination. These alternatives may be remote work, or periodic testing, or distancing and mask use at work, or a host of other accommodations. These accommodations must however be “reasonable,” that is, not unduly disruptive or expensive, and they must succeed in allowing the employee to perform all the essential functions of the job. Also, if the employer requires the employee to be vaccinated, the employee is to be paid for the time to and from the vaccination site and is to be reimbursed for his or her travel expense at the prevailing mileage rate.