Get Poked or Get Canned – Can You Terminate an Employee for Refusing the Vaccine? The answer is it depends.

Why is the employee refusing the vaccine?

For employers mandating the vaccine, an employee’s refusal to receive it because he or she simply does not want to be vaccinated is likely fair game for termination. Typically, however, an employee will seek a reasonable accommodation that enables him or her not to get the vaccine, raising an objection pursuant to the Americans with Disabilities Act (a medical issue) or Title VII (a sincerely held religious belief). Those scenarios require an employer to entertain the request by engaging in an interactive process to determine, primarily, whether there exists a way to provide the accommodation without creating an undue burden (or hardship) on the employer. The threshold for the hardship analysis is much higher for a medical reason than a religious reason. Keep in mind that you do not have to remove essential functions of a job or create a separate position as a reasonable accommodation.

What if you have a union or a federal contract?

The issue becomes even more complicated if a union is involved or the employer is a federal contractor. With a union, you must make sure you bargain appropriately before imposing a change in working conditions.

On the federal contract side, those employees will fall under a vaccine mandate starting October 15, just like federal employees. In the past months, vaccine requirements have differed from site to site depending on the particular government contracting agent. For example, if the site lets visitors (including contractor/subcontractor employees who perform their duties onsite) enter with masks or a negative test as an alternative to vaccination, the employer will in most cases need to provide the same accommodation. If the site takes a more stringent approach and does not allow masks and negative tests as an alternative, the employer may be able to deny such a request and terminate the employee instead. Before you terminate an employee, make sure to check for any vacancies in which you can provide the accommodation. If no such vacancies exist, the employer should allow the employee to exhaust available sick or PTO time, as well as FMLA leave, if his or her vaccine refusal is based on a medical issue. For a religious issue, the employee would not qualify for sick time, but the employer should allow that employee to exhaust available PTO prior to termination.

What about the OSHA Emergency Temporary Standard?

We expect OSHA to issue its Emergency Temporary Standard (ETS) soon, which will shed light on the analysis, but we do not yet know exactly what that guidance will be. We expect, however, that exceptions based on disability or religious requests for accommodation will be a part of the rules, and the ADA and Title VII analysis will be necessary.

As always, stay tuned for additional guidance after OSHA issues its ETS.

Print:
EmailTweetLikeLinkedIn
Photo of Anne Knox Averitt Anne Knox Averitt

Anne Knox Averitt is a labor and employment and litigation partner in the Birmingham office. She represents governmental and corporate clients in a number of industries, including automotive, natural resources, manufacturing, health care, non-profit, employee staffing, housing compliance, communications, federal contracting, construction, and…

Anne Knox Averitt is a labor and employment and litigation partner in the Birmingham office. She represents governmental and corporate clients in a number of industries, including automotive, natural resources, manufacturing, health care, non-profit, employee staffing, housing compliance, communications, federal contracting, construction, and financial services. She has helped to obtain favorable resolution for matters at all stages, from dismissal on the initial pleadings to a defense jury verdict.

Photo of Chuck Mataya Chuck Mataya

Chuck Mataya acts as lead counsel for prominent employers throughout the United States in the counsel and defense of employment and labor claims, including claims of wrongful discharge, breach of an employment contract, illegal discrimination under the various federal and state laws, and…

Chuck Mataya acts as lead counsel for prominent employers throughout the United States in the counsel and defense of employment and labor claims, including claims of wrongful discharge, breach of an employment contract, illegal discrimination under the various federal and state laws, and myriad other areas of employment and labor law. He is a frequent lecturer on topics related to labor/management relations, including the Americans with Disabilities Act, drug testing and privacy issues, the Fair Labor Standards Act, Anti-Harassment in the Workplace, Title VII, and discipline and discharge policies and procedures.

Photo of Anne R. Yuengert Anne R. Yuengert

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and…

Anne Yuengert works with clients to manage their employees, including conducting workplace investigations of harassment or theft, training employees and supervisors, consulting on reductions in force and severance agreements, drafting employment agreements (including enforceable noncompetes) and handbooks, assessing reasonable accommodations for disabilities, and working through issues surrounding FMLA and USERRA leave. When preventive measures are not enough, she handles EEOC charges, OFCCP and DOL complaints and investigations, and has handled cases before arbitrators, administrative law judges and federal and state court judges. She has tried more than 30 cases to verdict.