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EMPLOYER COVID MANDATES
How they commonly discriminate and violate the ADA
ABSENT INTENT OR AUTHORITY AS LEGAL ADVICE.
There are three common issues with COVID 19 vaccine/masking mandates.
These mandates classify employees to be “regarded as” disabled.
These mandates usually only offer religious or medical exemption, which is interference with ADA rights, according to EEOC guidance.
These mandates use the prohibited acts of coercion, intimidation, threats, harassment, and interference to enact and enforce the mandate policy.
There are three prongs to the definition of disability under the Americans with Disabilities Act (ADA) Actual disability, record of a disability, and regarded as disabled (This means you are treated as if you are disabled, whether or not you actually are disabled.)
On Being Regarded As Disabled
The reason I say that these mandates regard employees as disabled, is based on
All employees’ immune systems are regarded as disabled, being regarded as unable to defeat COVID-19 (which is a coronavirus, and our bodies have been fighting off coronaviruses for a lonnnnng time. Yes, this may be a “novel” coronavirus, but it’s still a coronavirus.)
Add to this that there has been total radio silence on how our immune systems can defeat this virus without a vaccine. There simply is no proof that the human immune system cannot defeat COVID-19 without a vaccine, as a general rule. Have people died? Yes. Have deaths been falsely attributed to COVID-19, when it could have been some other thing? Yes. (There’s money everywhere for the continuation of the fear factor.)
Implying that an entire group of employees’ immune systems cannot defeat COVID-19 is regarding them as disabled. Holding employers to the same standard as an employee asking for reasonable modification - WHERE is the medical proof that this employee’s immune system cannot normally defeat COVID-19? (We have a track record now that the “vaccine” is disabled. i.e., it cannot defeat COVID-19 infections, does not eliminate transmission, and allows for re-infection)
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The EEOC guidance on retaliation says that it is employer interference with ADA right when “issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections.”
Aside from the glaring dumpster fire that I’ve observed and written about in this separate substack article, which is also interference in almost every employee instance I’ve dealt with, the common practice for employers, when issuing COVID related mandates, is to offer a religious or medical exemption ONLY. This purports to limit the employee’s rights to invoke ADA protections.
For clarity if someone says “You have to do this but we’ll offer you a couple ways out of it”… that would lead any reasonable person to believe that there are no other choices. It “purports to limit” the employee’s available rights. This is interference with clearly established rights under the ADA.
29 CFR §1630.12(b) says: “It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by this part.”
Every employer COVID mandate I’ve seen, without exception, uses coercion, intimidation, threats, harassment and interference with ADA rights of the employees.
But, I don’t want to say I’m disabled… YOUR EMPLOYER IS DOING THAT FOR YOU BY THEIR ACTIONS! Many of the mandates I’ve seen include an allegation of “direct threat”. Using this claim also invokes the ADA, and without getting into the complicated way this works, just understand that “direct threat” is an ADA term, and to invoke it cannot ignore, or eliminate the ADA requirements, and more importantly, RIGHTS that go with the ADA. The right to be free of discrimination (not “regarded as” disabled), the right to be free from coercion, intimidation, threats, harassment, and interference with your rights, and more.
Under prongs one and two (actual disability and record of a disability - such as cancer that is in remission), you have the ability to ask for reasonable accommodations. Under prong three - regarded as - you don’t have the right to ask for accommodations, BUT, you do have the right to be free of discrimination, and the other prohibited acts mentioned.
I vigorously advocate for clients who are employees. If you need help fighting your employer’s mandate(s) on COVID, feel free to reach out.
Here is one testimonial:
"I was granted an ADA work from home accommodation from my workplace. As I had a work from home accommodation, I decided to relocate to a warmer climate which would significantly benefit my health due to my disability. When I shared my plan with my employer, I was forced to resign. I submitted my resignation, which was readily accepted. I love my job. I was deeply upset about losing a job that I enjoy, I am good at, and I have significant tenure. I decided to reach out to Jay Shore, an ADA Advocate, to see if he would be able to assist.
Throughout the following few weeks, Jay crafted detailed and well thought out letters to my employer. He was readily available to discuss and work through on-going changes in my situation. Approximately a month following our initial communication with my employer, I was notified that I would be able to keep my job from my new location. This success is due to all of the hard work and diligence of Jay Shore.
If you decide to work with Jay, please ensure that you are willing to push past your comfort zone. There were communications that were honest, but I was uncomfortable sending to my employer. I sent them because otherwise, I knew I would lose my job. Fighting to keep your job in these situations is emotionally taxing, but when working with Jay, you have a good chance at success. "
(Name withheld for privacy)
adarights (at) protonmail (dot) com.
P.D., JAY V SHORE, as Certified ADA Advocate