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My employer mandates vaccines for Covid. I have a medical exception. My doctor says there is a 50/50% chance I will have horrible consequence from vaccine based on my medical history. My doctor does not recommend it, but he says, it may go well (but probably it will not go well).

Currently my employer wants me to test every week (ADA), which I’m happy to do (this is a part of their ADA accomodation). It’s all good for now. However, I’m a little worried, what if my employer decides they don’t want to continue ADA, do they have the power to fire me? I’m willing to take a chance and take the vaccine in order to keep the job.

Question: is my employer obligated to give me an option to “opt out from the existing ADA accommodation and take the vaccine” to keep the job? Or my employer does not have this obligation? Is it even possible for me to negotiate “taking the vaccine even though I have a confirmed ADA accommodation”. I’m willing to take the risk in order to keep my job.

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    "I’m willing to take the risk in order to keep my job." Bad idea, especially given your physician's warning. This could forfeit remedies you would have if the employer fired you for declining to get the vaccine. Keep in mind that the employer might still avail himself of the doctrine of at-will employment and fire you anyway. Aug 13 at 14:52
  • I’m between a rock and a hard place. My doctor say “it may go well”, so there is a chance for me. If i take the vaccine there is a 50/50 risk to my health, but if i lose the job, I’m pretty much done (it’s death sentence), i won’t be able to support my family
    – user39489
    Aug 13 at 14:55
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    I'm not sure what you mean by your employer "deciding they don’t want to continue ADA"... the ADA is a law which (among other things) requires (most) employers to offer reasonable accommodations to disabled employees (as they have done for you), and prevents them from discriminating based on what reasonable accommodations someone requires. What prerogative are you worrying about them exercising? Are you worried about them ignoring/flouting the law?
    – Sneftel
    Aug 13 at 15:04
  • "i won’t be able to support my family". I hear you, but getting the vaccine does not guarantee your continued employment at all. And if the vaccine harms you like it has harmed others (putting aside the fact that it is too premature for identifying long-term side effects of this vaccine), you might not be able to support your family anyway. Aug 13 at 15:05
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    You are not between a rock and a hard place until your employee says it will no longer accept the testing accommodation, and that no other accommodation that you can accept will be offered. This is quite unlikely., and would probably violate the ADA and title VII Aug 13 at 15:21
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The ADA continues to apply, and an employer cannot simply withdraw an accommodation on a whim. You have established a medical need for an accommodation, and your employer must offer an accommodation if a rewasonable one is available.

The EEOC page giving guidelines on COVID says (in section K.1)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.

Section k.6 further says:

An employee with a disability who does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, known as a reasonable accommodation. To request an accommodation, an individual does not need to mention the ADA or use the phrase “reasonable accommodation.”

...

Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer. This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.

...

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p). Employers are advised to consider all the options before denying an accommodation request.

It is hard to see how having an employee get frequent COVID tests imposes an "undue hardship" on the employer, as it should impose little or no difficulty or expense on the employer. It seems unlikely that an employer who has accepted such testing as a reasonable accommodation would change its position and seek to deny that accommodation. Even if it did, any such employer still has a legal obligation to consider what would constitute a reasonable accommodation, and to inform the employee what it would accept as a reasonable accommodation before undertaking to terminate employment. If the employer insists that a vaccination is absolutely essential and no alternative will be tolerated (highly unlikely, even hospitals are not taking that position) it must offer the employee a chance to comply or to challenge the decision.

Until the employer indicates that the accommodation of regular testing will no longer be accepted, there should be no reason to take significant medical risks to meet an issue that has not in fact arisen.

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  • Thank you! So quote: “an employer still has a legal obligation to inform the employee what it would accept as a reasonable accommodation before undertaking to terminate employment.” This means, the the employer will give me an option to take vaccine or get out, and will not fire me without offering options
    – user39489
    Aug 13 at 15:32
  • @user39489 Yes, but in the situation where a vaccine has a high chance of doing significant harm to the particular person, they must also offer other less dangerous options if any would be reasonable for their business. They may not deny a reasonable accommodation where one exists. If there are multiple reasonable accommodations possible, they may choose which to accept, but "take the vaccine at the serious risk of your life or health" is not a reasonable accommodation.. Aug 13 at 15:47
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    @user39489 basically they can stop accommodating you if they change their mind and decide that the accommodation is no longer reasonable. This could be because they decide they were wrong in the first place or because circumstances have changed. But they cannot do that arbitrarily. They have to give actual reasons, and, if you disagree with them, you can go to court and have a judge decide what's reasonable.
    – phoog
    Aug 13 at 16:30

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