Vaccine Requirement Survial Kit for Employees

What you need to know about vaccine requirements at work and school and how to avoid them while keeping your job or educational program

by Alex Eulenberg, January 24, 2021, version 1.1

On September 9, 2021 the U.S. President issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, where he said all of his agencies must put in a clause in any new or renewed contracts with their contractors, (e.g. Lockheed Martin, who builds rockets for the Federal Army, and other smaller companies you’ve probably never heard of, or maybe you work for one), that requires that those companies adhere to certain guidelines. Which guidelines? He said they would be coming real soon. And in fact they did. On September 24, the new guidelines were announced, and four days later they were Approved by the OMB Among those guidelines (see Guidance for Federal Contractors and Subcontractors Final Approval Document from the OMB) were that all federal contractors must ensure that their employees be “fully vaccinated” (definition in the document) by December 8, 2021 which has since been moved to January 18, 2022. If you or a loved one works for a federal contractor, you may think this means that you are now required by law to be vaccinated or lose your job. Well, not exactly.

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. — Justice Benjamin Cardozo, 1914 (see full decision)
Medical informed consent law developed from the intentional tort of battery, which protects individuals from an unwanted physical touching of the body by others having neither express nor implied consent of the person touched. Battery occurs in medicine when a physician performs a treatment without the patient’s consent, performs a substantially different procedure than the one for which consent was given, or exceeds the scope of the consent, or when a physician other than the one to whom consent was given carries out the procedure.Medical Informed Consent: General Considerations for Physicians, Mayo Clinic Proceedings, 2008


First of all, this proclamation and guidelines do not by their very existence require you or your employer to do anything. Ostensibly, if you work for a company contracting with a Federal agency, Joe Biden has told those agencies to rework or change their contracts with the companies they work with. You don’t have to do anything until your employer tells you to. Well you’re probably here because your employer has already told you you must get vaccinated, and they won’t take your word for it; you must provide them proof, i.e. submit them your medical (vaccination) records. And they try to be nice about it. They say they’ll make an exception (“accommodation”) for medical or religious reasons, but again, you have to submit and sign a form with your medical condition or your religious beliefs.

Which just happens to be against the law (don’t take my word for this, look it up, I’m not a lawyer, but I’m pretty sure of this since I took all those mandatory workplace trainings). In the United States it’s quite likely your employer can’t demand you give up your medical records or make a religious confession as a condition of employment and even if it isn’t explicity prohibited by law (e.g. violating the Americans with Disabilities Act or the Civil Rights Act) it still may be against company policy.

The U.S. Equal Opportunity Commission prepared a document in 2009 Pandemic Preparedness in the Workplace and the Americans with Disabilities Act that reiterates the fact that it is against the law for employers to discriminate against employees based on their “medical condition” or on the results of a “medical test.” It was updated on March 19, 2020, when vaccines for COVID-19 were but a twinkle in President Trump’s eye. It was written with an eye to questions about discrimination against those who might be suspected of having COVID-19 and leading one to believe that it might at some point be OK to do that, although it never says that explicitly. It says medical examinations are prohibited unless there is “reasonable belief” the employee “will pose a direct threat due to a medical condition.” It is certainly unreasonable to assume that the mere fact of being unvaccinated poses a “direct threat” to anyone. Specifically considering the situation of a “Pandemic” the newly-revised document says:

A finding of “direct threat” must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities.

Note an employee simply not following the CDC’s recommendations du jour does not constitute being a “direct threat.”

So the very idea that an employer, particularly a non-medical, civilian employer can require its employees to get vaccinated is on shaky ground. And the writers of the guidelines know that. So they very carefully crafted some exceptions to the rule that make it look like the requirement in the guidelines is one that employers can legally enforce.

So anyway, the Federal guidelines for contractors (and you may have heard this from your employer who is trying to follow them) kind of give you three options: give proof of vaccination, disclose the medical condition you have that precludes your being vaccinated (ask for a “medical accommodation”), or give them the details of your religion that prohibits you from being vaccinated (ask for a “religious accommodation”). No way to preserve your medical or religious privacy here without being fired, right?

Actually, the definition of “religion” is broad enough that you can ask for a “religious accommodation” without revealing anything about what would typically be called your “religious affiliation” or “personal religious beliefs” which one might be uncomfortable sharing with strangers. Straight from the Federal Department of Labor on its Religious Discrimination and Accommodation in the Federal Workplace page (emphasis mine):

The Equal Employment Opportunity Commission (EEOC) defines “religious beliefs” to include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.

In other words, if you strongly and sincerely believe it is morally wrong for you to take this particular medical treatment you qualify to avoid having to submit your proof of vaccination on religious grounds. End of story! Now how do we go about claiming this qualification so you don’t have to get vaccinated? Can we really find a moral principle that anyone who doesn’t want to take a COVID-19 vaccine can honestly claim to believe, that means they shouldn’t take the COVID-19 vaccine? And will this belief be compatible with any theory of disease, any theory of biology, any concept of the meaning and purpose of life, how we all came to be, or other cherished belief or rejection thereof that any COVID-19 vaccine-refusing person might have? Can it be espoused by someone one has already taken a dose of a COVID-19 vaccine without being accused of being unprincipled, hypocritical, or disingenuous? Glad you asked! Yes, yes, and yes! Really! Here’s how! Here’s all you need. If you have any questions about the vaccines that cannot be answered (for example, the data required to answer the question has not been disclosed), or if for each available COVID-19 vaccine, you would deny your consent to have it administered to you, you qualify! You cannot give your informed consent!

How to exempt yourself from being vaccinated at a workplace with a vaccination requirement

Here are the questions on the latest recommended form for Federal employees. Your employer is probably giving you something similar modeled after this, using the word “accommodation” instead of “exception.” You can find a link to it on the Safer Federal Workforce Vaccinations FAQ under “Limited Exceptions to Vaccination Requirement — Should agencies provide employees who are seeking a legally required exception to the vaccination requirement with a form?” I’m using the one from the "exception based on religion" dated October 29, 2021 and of course it will apply to anyone with a medical condition as well. You can go to Internet Archive to see both the October 29 Version (current as of Jan 15, 2022) and the Earlirer (obsolete) Version. Note the obsolete version is no longer available on the Federal Workforce website although your employer is likely to still be using some form of it.

The answers to the questions hinge on the fact that every place you might go to receive your COVID-19 vaccine has you sign an “informed consent” form before you get your shot. If you don’t sign they won’t give it to you. It is a variation of a standard form used at clinics across the country before any medical procedure is performed, including the injection of a vaccine. In the case of children, it is signed by one of the parents. By signing the form you assert that you have been given the opportunity to ask questions about what is being administered, and that the questions have been answered to your satisfaction (you have been informed) and that after all that you consent to the procedure. I give two versions, one for the “short” form as currently recommended for Federal agencies, and a “long” form as it appears it is being used by private institutions such as Federal contractors. One or the other can be used to apply for a “religious accommodation” under your company‘s policy pursuant to the Federal guidelines. If your company gives you a form hopefully you will find one or the other appropriate. Or compose your own request using these examples as a reference.

Short form

  1. Please describe the nature of your objection to the COVID-19 vaccination requirement.
  2. Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise or conflict with your sincerely held religious beliefs, practices, or observances? If so, please explain how.
  3. Please provide any additional information that you think may be helpful in reviewing your request. ...

Many Federal contractor companies have religious accommodation request forms modeled after the more intrusive version. Here is how that may be answered:

Long form

  1. Please describe your sincerely held religious belief, practice or observance that is the basis for the religious accommodation that you are requesting.
  2. Please describe briefly how your sincerely-held religious belief, practice or observance conflicts with the company policy or requirement in question.
  3. How long you have held the religious belief underlying your objection
  4. Please describe whether, as an adult, you have received any vaccines against any other diseases (such as a flu vaccine or a tetanus vaccine) and, if so, what vaccine you most recently received and when, to the best of your recollection. or As an adult, have you refused other vaccines against other diseases (such as a flu or tetanus vaccine) and if so, which vaccines have you most recently refused and when?
  5. If you do not have a religious objection to the use of all vaccines, please explain why your objection is limited to particular vaccines.
  6. If there are any other medicines or products that you do not use because of the religious belief underlying your objection, please identify them. or Are there other medicines or products that you do not use because of your religious belief? If so, please identify them.