The New York City vaccine mandate remains a controversial topic throughout the country. Civil libertarians and employment law experts continue to debate the legality of the regulation. Until recently, much of the debate was focused on the merits of employee choice, bodily autonomy, and the scope of the mandate. Originally, Mayor Adams announced sweeping mandates for all city workers to include professional athletes. A recent article in this series discussed the disparity and inequities caused by an exception that was carved out for a specific class in the entertainment industry. This spurred many to believe that Adams’ edict is counter to Title VII and Section 707 of the Civil Rights Act of 1964 (as amended). Now, a new challenge to Mayor Adam’s order is becoming apparent.
The New York City Department of Health recently issued a litmus test for exception to the vaccine mandate. The Department of Health, Guidance on Accommodations for Workers circumscribes conditions under which employees may receive exceptions to the vaccine mandate. The document highlights reasons for both religious and medical exceptions. Unfortunately, the Department of Health again fails to consider settled law in the Americans with Disabilities Act and regulatory guidance set forth by the EEOC.
When an employee requests an accommodation due to sincerely held religious beliefs surrounding aborted fetal cell lines, the Department of Health instructs the employer to ask the employee whether they take, or have ever taken Ibuprofen (Advil) or acetaminophen (Tylenol). The problem is this question is illegal under the Americans with Disabilities Act (ADA). The ADA restricts employers from asking employees about medications. One notable exception to this restriction is when medications impair an employee’s ability to perform their duties. This clause is reserved for positions such as police officers, drivers, heavy equipment operators, and alike.
Renowned physician and former Neuro-Oncology Fellow with the National Cancer Institute at the National Institutes of Health, Dr. Nicole A. Colwell states that, “Ibuprofen and acetaminophen are well-characterized medications that pose no obvious or direct threat to an individual’s ability to perform essential functions.” In addition to the potential illegality of the medically probing question, the Department of Health guidance does not take into account the full spectrum for religious requests for accommodation.
Michael Kane, lead plaintiff in Kane v. De Blasio believes that the Department of Health guidance, “likely violates federal regulations as well as the 1st amendment.” Kane is an esteemed educator who refused to comply with the NYC vaccine mandate. He has since founded Teachers for Choice, an organization of “teachers and parents that are against forced medical mandates for any American to keep their job, especially educators.” Mr. Kane went on to say that, “I also think it’s ridiculous to believe everybody is aware of every product in which aborted fetal cells have been used. It is not advertised or exposed to anyone, so people could have used Tylenol for years or decades and never know the origin of research for the product. In addition to this, my religious exemption to vaccination makes no mention of aborted fetal cells.” Kane also makes the observation that, “Aborted fetal cells and stem cells are not the only religious belief that makes one decide to abstain from vaccination.” Michael Kane and Teachers for Choice continue to fight vaccine mandates in the state of New York. Mr. Kane is organizing a rally on May 16th in Albany to voice opposition to vaccine mandates.
The standard set forth by the NYC Department of Health in their Guidance on Accommodations for Workers likely violates the aforementioned statutes in the Americans with Disabilities Act and EEOC guidance. Employers may not ask about medications unless it directly relates to their duties and poses a safety hazard in performing essential functions. Like most requests for accommodation, there are alternative means to perform the same duties without causing undue burden for employers. Workers often cite multiple reasons for religious accommodation, so asking individuals to know the research history for all medications is unreasonable and likely illegal. The medications listed by the Department of Health do not interfere with the ability to perform one’s duties, which is the long-standing legal precedent under the Americans with Disabilities Act and reaffirmed by the 10th Circuit Court as recently as 2020.