Experts say that refusing to be vaccinated against the disease is grounds for firing, though there are exceptions.
For instance, the reason why you’re declining, the type of industry you’re in, your job responsibilities, and how you’ve done your work during the pandemic shutdown are all factors that may determine whether your employer has a legitimate claim to dismiss you.
Any workplace vaccine policy must include what federal law calls “reasonable accommodations” for disability and sincerely held religious beliefs. Examples of accommodations are allowing the person to telecommute or to come to work double-masked.
Attorneys and human resources managers are looking to the Americans with Disabilities Act, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration for guidance. Beyond those federal Big Three, there could be some distinctions state by state, because each has its own department of labor, overseeing workplace safety.
“Under the Americans with Disabilities Act, the regulations [question whether] you present a risk of substantial harm to the health or safety of the individual or others,” explains Long Island, N.Y., labor and employment lawyer Domenique Camacho Moran of Farrell Fritz.
Employees who don’t want the vaccine simply because they don’t trust it are out of luck.
Philadelphia-based employment attorney Dena Calo adds that the sort of work you do factors into the calculation. For instance, a lawyer can work remotely or remain sequestered in a private office while, say, a dental hygienist has no telecommuting option and is in incredibly close contact with patients.
“Do an individualized assessment,” Calo adds. “Look at everyone, their jobs, their skill set. Can they perform the functions of the job with accommodation? If all those ring yes, the employer will likely have to accommodate the person not getting vaccinated.”
Another possible exception is someone who doesn’t want the vaccine due to a fear of needles, but that phobia would have to be well documented and, in a doctor’s assessment, rise to the level of a disability. (Calo cites the case of a salesperson who had a fear of flying and wanted days to travel across the country for sales calls, instead of hours for flights. She was ultimately fired.)
If someone is fired due to refusing the COVID-19 vaccine, the question then becomes whether he or she will be eligible to collect unemployment. Will it be viewed as gross misconduct or will a now ex-employee with no history of willful misconduct, performance issues, discipline, or theft be allowed to file? The answer likely will differ state by state, too.
But now isn’t the time for employers to be firing people, which gets to the other side of the vaccine-in-the-workplace quandary: Just because employers can mandate vaccines, should they?
Moira Singer of the Pittsburgh-based human resources and leadership development firm Compass Business Solutions wants bosses to foster a loyal workforce by talking to their staffers about their vaccines, instead of just jumping straight from vaccine refusal to pink slip.
“As we move past this heightened risk of becoming sick and having things impacted by the coronavirus, we don’t want to lose our great employees,” she says. “Even though employers have the right to mandate vaccinations and to ultimately separate or fire an employee, that’s a terrible direction to go, because you may lose someone who is outstanding.”
Most employers seem to agree, with one survey from February finding that only 6% of employers plan to require all employees to be vaccinated once vaccines become widely available.
“What we want to do and encourage employers to do is have a conversation with employees,” Singer says. “Understand the reason why they’re resistant to have the vaccines.”