When Covid Testing Becomes Discrimination

Since people started voluntarily receiving the COVID vaccines, many employers have drawn a line and established different workplace requirements for those vaccinated vs unvaccinated. The courts have so far generally recognized regular testing and masking as a reasonable alternative to voluntary vaccination, even though it's not just, right, or fair. The data shows that both vaxxed and unvaxxed get, transmit, and can die of COVID. 

BUT, now that the mandate has inspired people to file for Medical and Religious Exemptions, the game has changed.  You are now a protected class.

All of the attorneys we've consulted agree.  One AZ attorney said, "If those with Religious Exemptions are being treated differently than their peers that is a case of discrimination.  The key is if your employer has been requiring testing as a condition of employment all along, or is this a new thing due to the mandate."

"Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion (or lack of religious belief) in hiring, firing, or any other terms and conditions of employment. The law also prohibits job segregation based on religion, such as assigning an employee to a non-customer contact position because of actual or feared customer preference.

In addition, the Act  requires employers to reasonably accommodate the religious beliefs and practices of applicants and  employees,  unless  doing so would  cause more than a minimal burden ("undue hardship") on the operation of the employer's business. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. Flexible scheduling, voluntary shift substitutions or swaps, job reassignments  lateral transfers, and exceptions to dress or grooming rules are examples of accommodating an employee's religious beliefs.

Whether a particular accommodation would pose an undue hardship on the employer's business depends on the individual circumstances.  For example, an accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. Undue hardship also may be shown if the request for an accommodation violates others' job rights established through a collective bargaining agreement or seniority system."

In order to file a discrimination complaint over the testing, we must prove each of these criteria in the affirmative.

1. Is testing a new condition of employment?  (The employer did not require testing of unvaccinated people previously.)
2. Is your company only requiring those with Religious or Medical Exemptions as a condition of your accommodation?  (They aren't requiring testing of vaccinated people.)
3. Does the data clearly show vaccinated persons get and transmit COVID?  ( Oh boy do we have the receipts!  Mayorkas and Psaki who are fully vaccinated recently got COVID and new studies are coming out daily.)

The attorneys we've consulted recommend we:

1. Exhaust all administrative remedies.  This includes requesting the testing requirement be removed as a condition of employment or approval of the Religious Exemption.  Do so politely.  If they refuse, we can accept the testing accommodation "under duress and threat of exemption rejection and/or termination".  This maintains our rights to appeal.   Liberty Counsel suggests the following verbiage : "I am signing this document without waiver of my legal right to seek religious exemption and accommodation from any requirement that conflicts with my sincerely held religious beliefs, and without waiver of the right to seek legal redress from any wrongful denial of such exemption or accommodation"  Basically you're saying you are preserving your right to apply for a Religious Exemption from the testing also.'  If they don't relent then;
2. File a complaint with the company ethics department.  We must show that the policy is discriminatory and that we don't pose a threat to workplace safety.  Because this is a liability issue, the company may agree.  They might begin testing the vaccinated also.  Or they reject it and we go to the next step.
3. File discrimination complaint with state and federal entities.  We've provided links how to do that HERE.  Or file with your State Attorney General Civil Rights Division.

Don't be afraid to push back against discrimination.  Employers are not prone to firing people who file complaints because it can be deemed retaliation and lead to serious consequences.

"It is unlawful for an employer to retaliate against an employee for opposing unlawful discrimination, filing a discrimination claim with a federal or state agency, or for participating in an investigation of such a claim. Applicable federal laws include: Title VII of the civil-rights act of 1964, ADA, Age discrimination  in employment act, and family medical leave act" "RETALIATION NEED NOT RELATE TO THE TERMS, CONDITIONS, OR STATUS OF EMPLOYMENT,( I.E. NO REQUIREMENT TO SHOW WORK-RELATED CONDUCT)"   See the EEOC.gov on Retaliation.