It appears that a COVID-19 vaccine will soon become readily available, and that raises many questions for employers and employees. An employee’s failure to be vaccinated could harm other employees in the same workplace and could put customers or the general public at risk. Employers in business categories, such as essential services, travel, and retail, have business reasons to be pro-vaccine. Alternatively, businesses with primarily remote workers may allow more personal choice. Those employers may determine that simply encouraging vaccinations is sufficient.
1. Is the person an at-will employee?
The general rule for at-will employees is that they can quit or be terminated for any reason or no reason. In other words, employers usually can require employee medical inquiries or require certain tests if those inquiries or tests are job-related and consistent with business necessity. The Equal Employment Opportunity Commission has already said that employers can require Covid-19 screening tests for employees, and we anticipate that it will also mean employers can require vaccination.
That likely also means, generally, that employers can terminate employees who choose to not become vaccinated. But the employee in that situation may be entitled to unemployment benefits if the requirement is a new one that was not in place at the time of hiring.
On the other hand, an employee may quit if the employer does not require all other employees to become vaccinated, or if the employee just doesn’t trust the vaccine and refuses to get one. But that employee will likely not be entitled to unemployment benefits.
In other words, while either side has at-will employment rights that they can exercise, there may be trade-offs to doing so depending on the situation.
2. Does the employee have a health condition or disability, or a sincerely held religious belief, that would prohibit vaccination?
There are some exceptions to the general rule about at-will employment. Specifically, employers must reasonably accommodate employees’ disabilities or sincerely held religious beliefs. Reasonable accommodations could look like requiring non-vaccinated employees to constantly wear a mask, limiting the types of customers the employees come in contact with, or changing their working times or responsibilities to protect customers and other employees.
To justify such reasonable accommodations, an employer may require employees to provide documentation from their medical provider explaining the employee’s disability that prevents the vaccination. Or to support a religious belief or practice, employers may require employees to provide either a first-hand explanation of the religious belief that prohibits vaccination, or an appropriate third-party verification, for instance from a religious leader. We anticipate that attorneys representing employees may seek to expand these protected categories as the law evolves, but these two exceptions are already firmly established.
3. Is there a written contract with the employee?
Other considerations may be necessary, including whether there are collective bargaining agreements or formal, written contracts for some or all employees. Those kinds of written agreements may change the relationship to something other than at-will employment and may accordingly make it easier (or harder) for employers to terminate employees who refuse to vaccinate (or, alternatively, for employees to quit if the employer does require vaccination of all employees).
4. Does the employer have a formal vaccination policy?
Though it would be breaking new legal ground, we anticipate that some employees may now argue that employers who decide not to require vaccination have failed to provide a safe and healthy work environment. Alternatively, some employees may argue that the cost of requiring vaccination must be borne by the employer. In those cases, pushing the cost of vaccination down to the employees may result in wage claims against employers if the cost results in employees earning less than minimum wage. Some or all of these claims may depend on the employer’s vaccination policy, when it was adopted, how it was rolled out, and who it applies to.
Call an attorney to review your situation.
Employers’ vaccination policies are generally lawful but may be challenged. Our experience can provide valuable assistance to companies and their workers navigating these uncharted waters. Let us review your situation to determine what your rights and obligations are, or to help you negotiate and draft agreements and policies so that you can better protect yourself and make sure that you are able to meet your goals.