Most experts have concluded that vaccine status is not protected by the Americans With Disabilities Act, the 1990 law which was designed to protect the civil rights of the disabled “to fully participate in all aspects of society.”
But not so fast.
Clearly the portion of the population which has refused COVID-19 vaccination is in the process of being locked out of participation in many aspects of society.
Secretary of Defense Lloyd Austin announced last week that members of the military will have to be vaccinated by September. Cities like New York are preventing people from eating at restaurants without a vaccine passport. Students will be locked out of their universities this fall, and employees will be fired from their jobs for refusing the vaccine.
So it is self-evident that the unvaccinated are being discriminated against, but experts say they are not covered by the ADA legislation because they are not really disabled. But is that true? Let’s look at the “definition of disability,” as it appears in the actual law.
“The term “disability” means, with respect to an individual:
- (A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
- (B) a record of such an impairment; or
- (C) being regarded as having such an impairment.”
The last part of the definition is the key. The door is open for lawsuits that contend that being unvaccinated is “regarded as having … an impairment.”
But skeptics will argue that being unvaccinated does not “substantially limit” a “major life activity” as described in Clause A above, and therefore it is not really an impairment.
Fortunately, the authors of the Americans With Disabilities Act recognized that not every disability could be circumscribed by a standard definition. What mattered more than the type of disability was the fact of the discrimination. Therefore, the authors mandated that:
“An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
Notice that the ADA protects an individual who is discriminated against not just because of an actual physical or mental impairment, but also because of a perceived impairment. The very actions being taken against the unvaccinated are proof that they are regarded as being impaired, that they are somehow weakened, imperfect or incompetent members of society.
Therefore, when action is taken against the unvaccinated to discriminate against them in employment, use of public services or in public accommodations solely because they are perceived to be impaired, there has been a violation of the ADA. It’s not hypothetical. It’s in black and white in the law itself. Victims do NOT have to actually suffer an impairment that limits a major life activity in order to be covered by the law.
Civil rights attorneys need to take up the banner, and fight to protect the rights of Americans to control their own bodies. Because if the government can make people violate their own bodies, they can make us do anything.
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Heartland Diary is solely operated by Frank Miele, the retired editor of the Daily Inter Lake in Kalispell, Montana. My new book is “What Matters Most: God, Country, Family and Friends” and is a collection of personal essays that transcend politics. The title says it all. My earlier books in the Heartland Diary series include “How We Got Here: The Left’s Assault on the Constitution,” “The Media Matrix: What if everything you know is fake?” and the “Why We Needed Trump” trilogy. Part 1 is subtitled “Bush’s Global Failure: Half Right.” Part 2 is “Obama’s Fundamental Transformation: Far Left.” Part 3 is “Trump’s American Vision: Just Right.” As an Amazon Associate, I may earn referral fees for qualifying purchases through links on my website. If you enjoy reading my commentary, I hope you will SUBSCRIBE to www.HeartlandDiaryUSA.com by leaving your email address on the home page.