Lake Odessa, MI asked in Employment Discrimination and Employment Law for Michigan

Q: Can my employer make me get Covid tested weekly even if I don’t have symptoms? I am unvacc. and only one getting tested

2 Lawyer Answers
Michael Zamzow
PREMIUM
Michael Zamzow
Answered
  • Employment Law Lawyer
  • Grand Rapids, MI
  • Licensed in Michigan

A: I don't believe there is anything suspect about this procedure, more information could tip the scales. The EEOC has published guidance on this and on mandatory vaccinations.

I would be curious to hear what an infectious disease physician would say. But from my perspective, on the practical (not legal) side. You're the only one unvaccinated, so it might not make a lot of sense to test you, i.e. what is the point. You're probably the one most likely to one suffer any consequences of an infection, albeit you're probably the most likely one to get infected too. So it might be unnecessary or it could be preventing an obvious vector of transmission.

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Thomas H. Roberts Esq
Thomas H. Roberts Esq
Answered
  • Employment Law Lawyer
  • Richmond, VA

A: The analysis may need to begin with the question - did you obtain a Title VII religious exemption from an employer's vaccination mandate? If so, the next question would be whether singling you out for testing may be a form of harassment or retaliation and not the required accommodation under Title VII. One might argue that there is no legitimate company objective in limiting the COVID tests to only those (you) that have not been vaccinated. If they are concerned about the potential spread of COVID, then they should test all employees - since the vaccinations will not prevent the other employees from becoming infected or spreading COVID. Under popular theories, the COVID vaccines will reduce the severity or symptoms of COVID of those infected, while the unvaccinated are expected to have more severe reactions or symptoms, meaning that you, under their theory of COVID, are more likely to be home or in a hospital instead of at work being tested for COVID and those that have been vaccinated are given a free pass to be at work spreading COVID. As such, this practice may violate Title VII, failing to reasonably accommodate your religious exemption, instead harassing you and punishing you based upon your religious belief and practice. That said, a snowball in hell probably stands a better chance than you in court, after the EEOC rejects your claim. I can't imagine you getting an unbiased jury. Most of the federal courts have at sometime or another had similar policies.

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