That expected order from the Biden administration that federal employees must be vaccinated or else, can they do it legally? For what the implications might be, Federal Drive with Tom Temin turned to the managing partner of the law firm Tulley Rinckey, Dan Meyer.
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Tom Temin: Dan, good to have you on.
Dan Meyer: Glad to be here.
Tom Temin: And what are the legalities? Are there constitutional issues? I mean, can a federal agency, and I guess for that matter, a contracting company, can they compel people to have vaccines?
Dan Meyer: So while there can be compulsion to have a vaccine, it’s all about how it’s done, and the process that government follows. And as we’ve seen, over the past year, there’s been a real tendency to aim after you’ve already fired the shot. So the critical question is, what have they done to set up the review process when people come back to them and say, I have not gotten the vaccine and I still want to work? And that’s where the legalities will decide the question. And it will be done, perhaps at a constitutional level, but I think most of the cases will revolve around the Rehabilitation Act of 1973, and the provisions that inform and tell the federal supervisors and managers that they cannot discriminate against people for disability in the workplace. So the key things for employees to understand is they need to document they don’t have the vaccination and they have some condition that will make them vulnerable to the virus. So, advanced planning can be important for employees, so they can best position themselves to not lose their job because of this executive order.
Tom Temin: Well, how can not having vaccination when it’s so readily available, then be construed or argued as a disability? Is that what you meant?
Dan Meyer: So the definition of disability includes things that prevent you from being able to undertake a major life task. The people who would be most protected are people with pre-existing conditions. So, those people need to document immediately, if they haven’t documented, they need to check in with their physician. There’s a variety of pre-existing conditions. Age, I think, would be one that falls into it. So, employees over certain age, they may have concerns about getting […], they may have concerns about how they’ll react when exposed to people who have the virus. So that documentation is one that fits well. People who are chronically overweight, that’s a pre-existing condition that I think would be helpful to document at this stage. So the harder task is, when an employee doesn’t have one of the comfortable, easy precondition statuses that fits within the laws that exist. So if somebody has a religious exemption, and for instance, they’re now given special accommodation for holy days, etc., that documentation is very helpful, because they can then move forward and say, well, they have a religious exemption for the vaccination as well. If somebody has a pre-existing condition that medically is a problem for either a vaccination or exposure to the virus, then they can ask for reasonable accommodations such as teleworking, and such, which would not put them in the workplace. So all of that pre-planning needs to go forward for the employees, in order for them to effectively adjudicate their status with their employer, with a vaccine mandate in place. The harder category of employee to protect are going to be those who don’t have one of those badges. They’re not under a union contract, and they have procedures that help them. So the physically fit person who is areligious, who is white male under age 45, is going to be very hard to protect. But there are strategies that they can employ as well, especially if they’re able to start documenting their medical concerns now. But it’s all going to be about pre-planning for the employees. If they want to resist the executive order, they’re going to have to go out and actually start laying the groundwork for the defense of their job.
Tom Temin: We’re speaking with Dan Meyer, managing partner of the law firm Tully Rinckey. On the other hand, they could just get a vaccine because it’s not hard. I’m trying to understand how you could claim a disability because you did not get a vaccine when the vaccine is readily available. What would your objection to the vaccine be, I guess, just to play devil’s advocate?
Dan Meyer: Well, many of the people make the case that they don’t want the vaccine. They make the case that the vaccine was approved under expedited circumstances, they don’t trust the research. They don’t have a trusted mentor within their community, a pastor who’s saying that’s a good thing to do, or family members who are saying it’s a good thing to do, so, they will have a reasonable belief in the unsafe nature of the vaccine. Or they probably won’t be bringing this claim already. I mean, part of the reason is that people bringing the claim do not trust the vaccine. And, a federal supervisor or manager would have to make a fact-finding saying that, well, you can trust the vaccine, your distrust is unwarranted, so I’m going to terminate you for that. That then becomes a central question when this gets taken up by whatever decision maker would then take it up above the federal supervisor manager. It could be the Merit Systems Protection Board, it could be the Equal Employment Opportunity Commission, could be any of a variety of places where these complaints would go.
Tom Temin: If the FDA were to move more expeditiously to give it permanent imprimatur, saying that this is now approved fully as any other drug. It seems like that could eliminate a lot of the resistance people have to having a vaccine?
Dan Meyer: Well, FDA evidence may reduce the number of sort of causes of action that somebody might have. It wouldn’t get rid of a religious exemption argument, that wouldn’t really help at all. But, there may be some options that are not available if FDA acts promptly.
Tom Temin: And the administration was expected to also say, well, if you don’t have the vaccine, then you can come to work but you have to have screening periodically or quite frequently. Does that mitigate the issue that people might have that they would then therefore not need to make a claim, because they’d be checked regularly for the infection itself?
Dan Meyer: Those mitigation procedures by employers typically are approved, okay? So that’s a good sort of proactive positioning on the part of the federal agency attorneys to best situate their bosses as they move forward with this. I don’t think that it is going to assist with changing people’s minds about the vaccine. I mean this is a central, you’re trying to get to a legal means to solve a problem about messaging, which has failed with a significant portion of the American population over the last 18 months, okay,? So there’s distrust of the government. And you have to go back to the 1990s for the roots of that. So we had distrust of the government coming all the way through to this pandemic. At a time when we needed the trust that we had during the Cold War, we don’t have it. And so, everybody is then drawing their advice from their local networks. And there are a lot of local networks that are opposed to the federal government. And that’s the fight that federal managers and supervisors are engaged in. So the more mitigating things they can do in the workplace with monitoring, and that is great, but it’s still not getting around the political issue, which is the failure of the messaging. And this is a bipartisan sort of assessment on my part. It’s not a criticism of the president or his predecessor. It’s just that there’s been a failure of messaging for a portion of the American population. It’s a minority. Thirty to 40%. But that’s a pretty significant bloc of people.
Tom Temin: I guess the question is whether that 30 or 40%, translates over to the federal workforce, which is a specialized group.
Dan Meyer: In my experience in representing federal employees, I find them no different than the average data slice of the American population. That would not have been the case in my father’s generation, say 50 years ago. But, the federal workforce I think, is of the same strife as the rest of the American people.
Tom Temin: Dan Meyer is managing partner at the law firm Tully Rinckey, thanks so much.
Dan Meyer: Thank you. And anytime you need help, just give us a call.