Every day, companies throughout the US are developing COVID-19 vaccine mandate policies. As employers require employees to get vaccinated, an inevitable clash has hit the center stage – can an employee refuse to get vaccinated? And what rights do workers have if they are separated from their employer if they refuse?
What is the legality of this issue, and do you have the right to sue your former employer if you have been terminated for refusing to get vaccinated?
What does the EEOC say?
The Equal Employment Opportunity Commission or EEOC has attempted to provide an understanding of employer/employee rights. And the answer is quite simple – a vaccine mandate does not prohibit the anti-discrimination laws that are in place. However, if a company says the vaccine is required or recommended, accommodations must be taken into account before terminating an employee.
Vaccines must be job-related and consistent with how necessary it is for a job. There also needs to be an evaluation of risk. The Americans with Disabilities Act states that “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” A direct threat is when the threat is much more significant than the possible accommodation. Suppose an employee does not pose a direct threat by their refusal. In that case, an employer must recognize that an accommodation should be made, such as having them work remotely or taking a leave of absence.
If an employee claims a disability exemption, the employer must consider if the employee comes in contact with other employees, clients, vendors, etc. If that is the case, the employer can easily establish that allowing the employee to remain at the job, while unvaccinated, will impose an undue burden on the employer.
Should accommodations be made for religious beliefs?
An accommodation should also be made if the refusal of the COVID-19 vaccine is due to religious beliefs. Employers are to assume that a religious belief is sincere. However, if there is no reasonable accommodation that can be made, the employer does have the right to refuse the accommodation. Here, just like the disability analysis above, if the employer can show that the accommodation would pose an undue hardship, the employer is not required to accommodate the employee with the religious accommodation request.
And there is one last important distinction to make here – an employee who is separated for failure to get vaccinated is not considered to have been fired; he or she is considered to have resigned. Why? Since mandates are legal, a refusal to get the vaccine is the equivalent of insubordination or even voluntary termination (aka resignation). If an employee is separated from an employer for insubordination or resignation, they are prohibited from receiving unemployment benefits. Across the country, state unemployment offices are refusing applicants who were separated for vaccine refusal.
Meanwhile, as the recently terminated employee looks for a job, prospective employers are asking if the employee is vaccinated, which they have every right to do.
Getting the COVID-19 is a personal decision. Individuals must consider the health and well-being of themselves and others. Now, they must also consider the legal implications of their decision as well.