KEY POINTS

  • Case law tends to favor employees on issues like retaliation
  • Employers, however, have a lot of leeways when dealing with emergencies
  • There’s nothing inherently illegal about some workplace requirements

From the Americans With Disabilities Act to matters of religion, what an employee can do when it comes to a mandated COVID-19 vaccine is a difficult issue to address, an analyst said.

The Centers for Disease Control and Prevention’s (CDC) Emergency Operations Center classifies COVID-19 as a “direct threat.” That means employers have broad leeway on what they can do in terms of health screenings or even mandating a COVID-19 vaccine.

Misty Marris, a trial attorney working on employment law at the New York office of Gordon Rees Scully Mansukhani LLP., told Fox Business on Thursday there’s nothing inherently illegal in mandating certain measures, but it can be a “thorny road.”

"In the context of a vaccine, an employee could ask for an exemption to a mandatory vaccination on the basis of religion," she added.

In theory, an employee could also look to the Americans with Disabilities Act for relief, arguing they’re allergic or otherwise sensitive to an eventual vaccine. Another layer of protection could come from the Equal Employment Opportunity Commission, which shields workers from forms of retaliation.

"That issue arises all the time, before we ever heard of COVID-19," Blaine Bortnick of the law firm Rasco Klock told Fox Business in April. "An extreme example an employer could not get away with would be firing 85% of women and only 5% of men because of COVID-19. When they're essentially doing the same job, you can't use COVID-19 as a coverup."

More recently, the Salem Statesman Journal in Oregon reported an area oncology nurse was placed on leave after showing “cavalier disregard for seriousness the pandemic.” The nurse in question, Ashley Grames, boasted of her travels and showcased her reluctance to wear a mask in public on social media. Her employer, Salem Health Hospital, has been on the state’s list of workplaces with the highest number of COVID-19 cases since May and has strict COVID guidelines.

"These policies are strictly enforced among staff from the moment they leave their cars at work to the moment they start driving home,” the hospital said in a statement.

An investigation is pending.

In her interview with Fox, Marris said you could get fired for not following company policy on health guidance, though it was something of a "legal minefield.”

A survey published Thursday by the Pew Research Center found 60% of pollsters said they’d get vaccinated once the inoculations are approved and available, up from 51% who said the same in September.

Masks have become obligatory in many aspects of public life Masks have become obligatory in many aspects of public life. Photo: AFP/Romeo GACAD