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Alia
Dec 19, 2020

We've heard a lot from our authorities here in NZ that CV vaccines won't be mandatory. Many of us know that much of this rhetoric boils down to semantics and there's a likelihood of coercion entering the mix, with potential restrictions being placed on travel, employment, and access to various public services and spaces.

Some of these restrictions might not come directly from government either. Imagine a scenario - like that of Qantas recently - where it's the companies and businesses independently imposing the exclusionary rules.

This report has just come in from the US. Whilst we haven't heard of such things here (yet), we have to keep a close eye on what is happening overseas so that we may spot rumblings of similar plans in our own back yard.

The public has been trained for the majority of this last year to be selfless in their behaviour for the "greater good". So much of the messaging has not been about personal protection, but rather to protect those around us - the vulnerable, elderly and frail as well as our healthcare systems. Now it seems that the "greater good" concept will be extended to the workplace - specifically where non-vaccinated employees pose a threat to the health and safety of their co-workers and presumably their customers and public too.

"The ADA [Americans with Disabilities Act] allows an employer to have a qualification standard that includes 'a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace,'" the EEOC said on Wednesday.

While the ADA places limits on employers being able to require a medical exam, as CBS News explained, the EEOC's updated guidance notes that vaccination doesn't qualify as a medical exam. In short, requiring a vaccine would not be an example of an ADA violation.

If an employer is unable to provide a "reasonable accommodation" to someone who refuses to comply with a vaccine policy by citing a disability or "sincerely held religious practice or belief," the employer is within the power of the law to exclude any such employee from the workplace, though the employer may not "automatically terminate" the employee.

Speaking further on the termination aspect with CBS, Sharon Masling—a workplace lawyer in D.C. and ex-chief of staff to an EEOC commissioner—detailed how employers can reasonably move forward in these unique scenarios. If accommodations can't be made and the job itself requires being present in a physical space, meaning a potential threat to the safety of others, "they could be terminated."

So, next time you hear our leaders carefully choose their words on this topic, keep this in mind: coercion comes in many forms.

And if you happen to stumble across some interesting information in this space, be sure to get in touch and let us know.


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REFERENCE

https://www.complex.com/life/2020/12/equal-employment-opportunity-commission-employers-right-require-covid-19-vaccine

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