No Jab, No Job: Are you a public employee facing discrimination?

If you are a State or municipal employee facing religious discrimination, I would like to hear from you.

For example, if your employer requires you to receive a product known as a “COVID-19 vaccine” as a condition of your employment (the No Jab, No Job rule) and refuses your request for a religious exemption, you may have legal recourse. To set up a free 20-minute consult, use the contact form below.

Religious Freedom

As you may know, Massachusetts law (M.G.L. c. 151B) prohibits discrimination on the basis of religion. If your employer denied your request for a religious exemption from the No Jab, No Job rule, you may have a claim under that law. The place to file your claim is the Massachusetts Commission Against Discrimination (MCAD) and the filing deadline is 300 days after the discriminatory act.

This is a complicated and shifting area of law, so it is worth reading up on the subject even before talking to a lawyer. The New Civil Liberties Alliance has articles and press releases about its courtroom efforts against mandates, the Pacific Justice Institute provides free resources on protecting religious rights in the workplace, and the Christian Legal Aid Society offers a Religious Freedom Toolkit. You may also want to check out Attorney Aaron Siri’s site, Injecting Freedom.

Genetic Discrimination

In addition to the law against religious discrimination, Massachusetts also forbids discrimination on the basis of genetic information. Similarly, a federal statute called the Genetic Information Non-Discrimination Act (GINA, Title II) makes it unlawful for an employer

to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

This information page and Q&A show where the Equal Employment Opportunity Commission (EEOC) stands on GINA and vaccines. Bear in mind, these EEOC documents are not law (they are not statutes, regulations, or judicial decisions) but courts usually defer to the EEOC when the agency is interpreting the statutes in its purview. The EEOC documents are helpful insights for employees who wish to use GINA to challenge the No Jab, No Job rule.

Bioethics

Another helpful resource for employees is Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights, which the General Conference of UNESCO adopted in 2005.

The relevant paragraph of Article 6 provides that:

Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.

Although it does not have the force of law, the Declaration is something that judges may choose to take note of in some cases, e.g. the Second Circuit Court of Appeals decision in Abdullahi v. Pfizer, a case about Pfizer’s drug trials in Nigeria.

The principle of prior, free, informed consent should guide courts and adjudicatory bodies like the MCAD when considering No Jab, No Job cases.

Consult

To set up a consult, please use this form.

Court of Appeals tells District Court to reconsider denial of injunction in vaccine mandate case

February 18, 2022:- Yesterday the Fifth Circuit Court of Appeals sent a vaccine-mandate case back down to the District Court for the judge to re-consider the employees’ request for a preliminary injunction. The case is Sambrano, et al, v. United Airlines, Inc., United States District Court for the Northern District of Texas USDC 4:21-CV-1074.

The employees are suing the employer because the employer requires them to receive a COVID-19 vaccination. The District Court had denied the employees’ request for a preliminary injunction on the grounds that the employees could not show “irreparable injury,” but the Court of Appeals disagreed:

Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.

Check here for updates on this case.

Photo by Mika Baumeister on Unsplash

Hospital settles with flu vaccine refuseniks

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about¬†Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

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Peter Vickery, Esq.