1

Regarding: https://abcnews.go.com/Health/wireStory/private-florida-school-employ-vaccinated-teachers-77347282

If indeed it is true that Leila Centner is:

  1. Spreading False COVID-19 information that supports pandemic infections to parents / students
  2. Will not employ vaccinated teachers

Questions:

  • What, if any, statutes has Center run afoul?
  • Is there precedent for the First amendment right to effectively enable behavior #1?
6
  • Private medical information like "is vaccinated" falls under HIPAA and the employer can't demand to know that.
    – Trish
    Apr 28 at 13:12
  • 6
    @Trish Where in HIPAA are you getting this from? I think you may have just made it up.
    – bdb484
    Apr 28 at 16:09
  • @bdb484 no, what I mean is: the employer can't call the doctor of the employee or the vaccination place and demand to know if the employee was vaccinated. Getting that information would be a HIPAA violation - as David below points out
    – Trish
    Apr 28 at 17:16
  • 5
    Giving the information without authorization is a violation, getting it is not.
    – user6726
    Apr 28 at 17:24
  • 2
    I wonder if there is an OSHA violation here? First amendment doesn't trump employees' right to have a safe working environment.
    – richardb
    Apr 29 at 8:36
6

Vaccination status does not currently define a protected class under Florida or Federal law. Being or not being vaccinated is not legally recognized as a condition that "substantially limits a major life activity", hence is not an example of disability-related discrimination. The opposite scenario, where an employer refuses to hire an un-vaccinated person, potentially runs afoul of disability discrimination laws when a person has a legal disability that prevents their vaccination. As noted here, due to the scope of the Privacy Rule HIPAA does not directly apply to your question, when the patient discloses information. However, the healthcare provider cannot disclose such information without patient authorization.

It's hard to see a First Amendment basis supporting the action (in case the law changes w.r.t. vaccination and discrimination). You could imagine a religion which holds that vaccination against some disease is blasphemy, and forcing an employer to hire the vaccinated is compelled speech which repudiates a fundament of their belief. Even so, it is not sufficient that the business owner holds some odd belief, the belief has to be essential to the nature of the business (see BSA v. Dale). That could be the case of a religious school.

1
  • HIPAA also prohibits discrimination on the basis of health status when determining eligibility for a health plan. That could plausibly be extended to protection against discrimination on the same basis when making hiring and firing decisions.
    – phoog
    Apr 28 at 16:49
4

The US first amendment generally protects people making statements of opinion, and statements of fact, even when these are clearly or allegedly false, unless they constitute defamation or fraud. Here the statements mentioned in the question and reported in the linked article do no seem to be about any particular person or group, so they are not defamatory. There is lots of precedent for this.

Federal and state anti-discrimination statutes only protect specific classes of people. "vaccinated" is not such a class, surely not on the Federal level, and I do not believe it is on the state level in Florida (or any other state) either. Thus no anti-discrimination law could prevent a private school from taking the action reported, restricting or firing teachers who hae been vaccinated.

Being vaccinated is not a "disability" under the ADA, and so the ADA protections against discrimination on the basis of an actual or perceived disability would not apply.

An employer may not, under HIPPA, demand medical information, such as vaccination status. But if a teacher reveals it, or the school learns of it in some other way, they can choose to act on it. Florida is, like most US states, an "employment at will" state, so unless an individual has a binding employment contract (which most do not) an employer may fire an employee at any time for any reason or no reason, except only those few reasons prohibited by Anti-discrimination laws

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.