I have seen a lot of talk around the boards recently about workplaces mandating COVID tests just for the unvaccinated. I am about to face this issue at my workplace, and have prepared the following document which I will present once I am tested. Bottom line, it is illegal and a violation of civil rights. Feel free to use and modify as necessary.
Good morning. This email is to serve as a letter of concern in regards to the upcoming policy concerning the weekly testing of only unvaccinated employees. It is imperative that you understand up front that:
· This directive is in direct violation of federal law concerning specific requirements associated with the use of EUA products.
· This directive is both inconsistent and contradictory to the current scientific data and studies proving that the COVID-19 virus infects and is transmissible by both vaccinated and unvaccinated individuals alike while only requiring testing of unvaccinated personnel.
· This directive is in direct violation of the Constitutional rights of the employees who are tested, specifically the First Amendment to the Constitution which guarantees the protection of their religious rights from government overreach and impact to those employees seeking religious exemptions from the COVID-19 vaccine mandate.
All COVID-19 tests, whether polymerase chain reaction (PCR), antigen tests, or others, are authorized, not approved or licensed, by the federal government; but have been approved for Emergency Use Authorization (EUA) only. The Food and Drug Administration (FDA) has issued Emergency Use Authorizations for over 200 different test kits manufactured by various organizations. Each of FDA’s EUA letters relies on 21 U.S.C. § 360bbb- 3(e)(1)(A)(ii)(I- III). EUA products are by definition experimental and thus require the right to refuse, which puts the mandatory testing directive in contradiction to federal law. Title 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(I-III) of the Federal Food, Drug, and Cosmetic Act states: individuals to whom the product is administered are informed—
(I) that the Secretary has authorized the emergency use of the product;
(II) of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and
(III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
The use of any EUA product must be optional, and come with the right to refuse the product under federal law. By issuing a directive ordering subordinate units to submit their unvaccinated members to twice weekly EUA COVID-19 tests in order to access their work centers, the company's new testing directive is in direct violation of federal law concerning the use of EUA products and is thereby illegal. By extension, all supervisors who carry out the directive are also in violation of federal law. In regard to this, what is the company’s legal authority for violation of Title 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(I-III) of the Federal Food, Drug, and Cosmetic Act?
Second, the deliberate targeting of only unvaccinated individuals with this directive is counter to the current science and available data concerning the COVID-19 virus and the COVID-19 vaccines. Each of the current COVID-19 vaccine producers explicitly state that their products to do not fully prevent or completely protect individuals from catching or spreading COVID-19. In addition, according to the CDC, as well as peer reviewed medical journals and scientific studies, individuals that are unvaccinated, and individuals that are fully vaccinated or fully vaccinated and have received the COVID-19 booster dose have not only been proven to be susceptible to infection by the virus but are also capable of transmission of the virus to others. If the current regimen of vaccines does not prevent infection or transmission of the COVID-19 virus, then what is the company’s strategic objective of requiring these twice weekly tests for only unvaccinated employees?
Since all COVID-19 vaccines currently in use will not prevent the infection or transmission of the COVID-19 virus within a unit, the company’s directive will constitute an overt form of discrimination against those employees seeking exemptions from the COVID-19 vaccination mandate. This policy not only damages workplace cohesion but puts these individuals seeking vaccine exemptions at risk of reprisal from their peers and superiors alike. Further, the policy’s weekly testing and reporting requirements (such as the requirement that a supervisor must twice weekly observe the individual’s test administration and wait with the individual to verify the test’s results) impacts the section’s ability to perform their assigned tasks by placing additional administrative burdens on them.
Third, the company directive mandating the twice weekly testing of only unvaccinated individuals violates the Constitutional rights and federal laws enacted to protect those rights concerning the religious rights and freedoms of employees. Submitting a religious exemption to the COVID-19 vaccine mandate is part of, and constitutes, the exercise of one’s religion. The company’s directive unduly and disproportionally burdens those who submitted religious exemptions to the COVID-19 vaccine mandate. This violates these employee’s rights under Title VII of the Civil Rights Act of 1964, the Religious Freedom Restoration Act (RFRA) of 1993, and the 1st Amendment to the US Constitution. In regard to the RFRA specifically, the Supreme Court wrote, “That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest”.
In light of the fact that both unvaccinated and vaccinated can both be infected by and transmit COVID-19, requiring the twice weekly testing of only unvaccinated individuals does not represent a ‘compelling interest’ as mandated in the RFRA. Further, the current testing directive is also not the ‘least restrictive means of furthering that interest’ as also required by the RFRA. Before the COVID-19 vaccines were available to the public, the company did not institute a twice weekly testing policy for all employees. Instead, during this time the company satisfied their aforementioned ‘compelling interest’ through a 100% mask wear mandate and COVID-19 testing when individuals either began to show symptoms consistent with a COVID-19 infection, or as a prerequisite before certain types of travel. This set the precedent of what the company considered adequate when it came to the ‘least restrictive’ measures in regard to COVID-19 risk mitigation within its structure. Consequently, in addition to the illegality of mandating employees use an EUA product, company’s testing directive to twice weekly test only unvaccinated individuals is also in violation of the legal requirements of the RFRA and the other laws and regulations described above.
To conclude, I respectfully ask that the company delay implementing testing of only unvaccinated individuals and submit a legal review of their testing policy in light of the aforementioned violations of federal law and Civil Rights that such a policy entails. Every single time anyone is tested against their will, or any time an unvaccinated person is targeted for testing, it is a violation of law. Again, I submit this to you as a caution to ensure that the company is protected and that no violations of law occur.
Good morning. This email is to serve as a letter of concern in regards to the upcoming policy concerning the weekly testing of only unvaccinated employees. It is imperative that you understand up front that:
· This directive is in direct violation of federal law concerning specific requirements associated with the use of EUA products.
· This directive is both inconsistent and contradictory to the current scientific data and studies proving that the COVID-19 virus infects and is transmissible by both vaccinated and unvaccinated individuals alike while only requiring testing of unvaccinated personnel.
· This directive is in direct violation of the Constitutional rights of the employees who are tested, specifically the First Amendment to the Constitution which guarantees the protection of their religious rights from government overreach and impact to those employees seeking religious exemptions from the COVID-19 vaccine mandate.
All COVID-19 tests, whether polymerase chain reaction (PCR), antigen tests, or others, are authorized, not approved or licensed, by the federal government; but have been approved for Emergency Use Authorization (EUA) only. The Food and Drug Administration (FDA) has issued Emergency Use Authorizations for over 200 different test kits manufactured by various organizations. Each of FDA’s EUA letters relies on 21 U.S.C. § 360bbb- 3(e)(1)(A)(ii)(I- III). EUA products are by definition experimental and thus require the right to refuse, which puts the mandatory testing directive in contradiction to federal law. Title 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(I-III) of the Federal Food, Drug, and Cosmetic Act states: individuals to whom the product is administered are informed—
(I) that the Secretary has authorized the emergency use of the product;
(II) of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and
(III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
The use of any EUA product must be optional, and come with the right to refuse the product under federal law. By issuing a directive ordering subordinate units to submit their unvaccinated members to twice weekly EUA COVID-19 tests in order to access their work centers, the company's new testing directive is in direct violation of federal law concerning the use of EUA products and is thereby illegal. By extension, all supervisors who carry out the directive are also in violation of federal law. In regard to this, what is the company’s legal authority for violation of Title 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(I-III) of the Federal Food, Drug, and Cosmetic Act?
Second, the deliberate targeting of only unvaccinated individuals with this directive is counter to the current science and available data concerning the COVID-19 virus and the COVID-19 vaccines. Each of the current COVID-19 vaccine producers explicitly state that their products to do not fully prevent or completely protect individuals from catching or spreading COVID-19. In addition, according to the CDC, as well as peer reviewed medical journals and scientific studies, individuals that are unvaccinated, and individuals that are fully vaccinated or fully vaccinated and have received the COVID-19 booster dose have not only been proven to be susceptible to infection by the virus but are also capable of transmission of the virus to others. If the current regimen of vaccines does not prevent infection or transmission of the COVID-19 virus, then what is the company’s strategic objective of requiring these twice weekly tests for only unvaccinated employees?
Since all COVID-19 vaccines currently in use will not prevent the infection or transmission of the COVID-19 virus within a unit, the company’s directive will constitute an overt form of discrimination against those employees seeking exemptions from the COVID-19 vaccination mandate. This policy not only damages workplace cohesion but puts these individuals seeking vaccine exemptions at risk of reprisal from their peers and superiors alike. Further, the policy’s weekly testing and reporting requirements (such as the requirement that a supervisor must twice weekly observe the individual’s test administration and wait with the individual to verify the test’s results) impacts the section’s ability to perform their assigned tasks by placing additional administrative burdens on them.
Third, the company directive mandating the twice weekly testing of only unvaccinated individuals violates the Constitutional rights and federal laws enacted to protect those rights concerning the religious rights and freedoms of employees. Submitting a religious exemption to the COVID-19 vaccine mandate is part of, and constitutes, the exercise of one’s religion. The company’s directive unduly and disproportionally burdens those who submitted religious exemptions to the COVID-19 vaccine mandate. This violates these employee’s rights under Title VII of the Civil Rights Act of 1964, the Religious Freedom Restoration Act (RFRA) of 1993, and the 1st Amendment to the US Constitution. In regard to the RFRA specifically, the Supreme Court wrote, “That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest”.
In light of the fact that both unvaccinated and vaccinated can both be infected by and transmit COVID-19, requiring the twice weekly testing of only unvaccinated individuals does not represent a ‘compelling interest’ as mandated in the RFRA. Further, the current testing directive is also not the ‘least restrictive means of furthering that interest’ as also required by the RFRA. Before the COVID-19 vaccines were available to the public, the company did not institute a twice weekly testing policy for all employees. Instead, during this time the company satisfied their aforementioned ‘compelling interest’ through a 100% mask wear mandate and COVID-19 testing when individuals either began to show symptoms consistent with a COVID-19 infection, or as a prerequisite before certain types of travel. This set the precedent of what the company considered adequate when it came to the ‘least restrictive’ measures in regard to COVID-19 risk mitigation within its structure. Consequently, in addition to the illegality of mandating employees use an EUA product, company’s testing directive to twice weekly test only unvaccinated individuals is also in violation of the legal requirements of the RFRA and the other laws and regulations described above.
To conclude, I respectfully ask that the company delay implementing testing of only unvaccinated individuals and submit a legal review of their testing policy in light of the aforementioned violations of federal law and Civil Rights that such a policy entails. Every single time anyone is tested against their will, or any time an unvaccinated person is targeted for testing, it is a violation of law. Again, I submit this to you as a caution to ensure that the company is protected and that no violations of law occur.
