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Can Your Employer Fire You If You Refuse the Coronavirus Vaccine?

coronavirus vaccine
Nurse Eustathia Kampisiouli was the very first Greek citizen to receive the coronavirus vaccine. Credit: AMNA

Is it really legal for employers anywhere in the world to fire you if you refuse the coronavirus vaccine?

In some places, yes it is; but the reality on the ground is much more complicated, as the issue involves religious and other exemptions which give many employees who refuse to be inoculated a way out of such rulings.

For some healthcare workers or essential employees in the United States, a state or local government or employer, for example, may require or mandate that workers be vaccinated as a matter of state or other law.

Private colleges are for the most part adhering to a policy of mandating coronavirus vaccinations for their returning students in the Fall of 2021 while public universities have taken a more cautionary route in legal terms of simply recommending that all students have the vaccine before going back to school at that time.

Alarms were raised in Greece today when Alexis Georgiadis referred to the “consequences of each person’s decisions” and mentioned a new ruling by an American court allowing employees to be fired for refusing the vaccines.

“I think this will be decided in a courtroom”

Georgiadis, a Greek politician, telemarketer and publisher, is currently serving as the Minister for Development and Investment in the Cabinet of Kyriakos Mitsotakis. He is the Vice-President of the New Democracy Party.

He previously served as Deputy Minister for Development, Competitiveness and Shipping in the Cabinet of Lucas Papademos (2011–2012) and Minister for Health in the Cabinet of Antonis Samaras (2013–2014).

The Minister made his remarks while speaking to the “Today” program on Skai television on Wednesday.

When asked about perks or privileges for those who have been vaccinated in Greece, Georgiadis replied “The word ‘perk,’ or ‘privilege’ is incorrect. That bothers me.

“When someone chooses to become vaccinated, that person is at much less risk for contracting the virus and they can take protective measures that are less strict, simply because they’re at less risk… while someone who chooses not to get vaccinated is at much higher risk of contracting the virus, and should take more protective measures.

“It’s not an issue of discrimination between the two, they are just consequences of each person’s decisions.

“The decision on whether an employee is legally fired if he or she refuses to get vaccinated is not the job of the government. Courts will decide if an employee is legally fired.

“But since you’re asking my opinion, someone could safely do something like that if the employee works in a critical position at that business …yesterday I read about a higher US court decision (I believe it’s the one about the hospital in Texas) where the judge wrote that it is an especially good reason (to fire), if the person puts others in danger.

“My personal opinion is that a company could fire someone for this reason if it decided that the employee works in a sensitive department for public health. But the courts will decide.”

Skai interviewers asked Georgiadis whether or not he believes that this will also become settled law in Greece.

“No, no, not at all,” he insisted. “This has nothing to do with the government, and it’s not likely that the government will put something like that into law.”

Texas ruling upholds hospital system’s mandatory vaccination policy

Georgiadis was referring to a Texas federal judge who ruled on Saturday that a large Houston hospital system’s mandatory vaccination policy was legal in a decision that could set a precedent as to whether American companies can require the shot for employees.

However, experts are saying that the upset engendered by the Houston Methodist Hospital’s decision, including a mass walkout, may not be worth it for their own firms.

Kevin Troutman, a partner at Fisher Phillips, which represents management in employment law cases, told Marketwatch “A lot of employers have decided they don’t want the controversy.”

More than 100 Houston Methodist Hospital workers refused to comply with the 26,000-employee hospital system’s deadline to receive the coronavirus vaccine, which occurred on June 7.

The American South is a particularly tricky area when it comes to the vaccination rollout in the US, with most southern states lagging far behind other states in inoculation rates.

The percentage of Americans who say they will “definitely not” get the shot has been hovering between 13% -15% from last December to this May, according to a poll from the Kaiser Family Foundation.

64% of Americans now at least partially vaccinated

The hospital workers sued to block the policy on the grounds that they were being coerced into being “human guinea pigs” as a condition of their employment at Houston Methodist.

The hospital suspended 178 of its employees who indeed refused to receive coronavirus vaccinations. In court documents, the hospital system stated that the staffers who still had not gotten their vaccinations after the 14-day unpaid suspensions could lose their jobs for good.

The major lawsuit and the hospital’s unusual — and perhaps unprecedented — disciplinary action brought national and global media attention to this pressing issue around the globe.

As of Monday, 54.4% of America’s adult population was fully vaccinated, and 64.6% have received one dose of coronavirus vaccine, according to data from the U.S. Centers for Disease Control and Prevention.

Considering these statistics showing a strong acceptance for the coronavirus vaccine overall, Southern District of Texas Judge Lynn Hughes ruled that Houston Methodist’s rules did not amount to coercion. If workers didn’t like the policy, they were free to leave, Hughes said.

The judge ruled also that employers do have the right to attach many types of rules and expectations in exchange for a paycheck, regarding coronavirus vaccines and other matters, Hughes stated.

The matter is currently under appeal.

Of all the pending legal actions over workplace firings for refusal to accept vaccines, Hughes’ decision was the first known ruling on the subject, according to the Marketwatch report.

The U.S. Equal Employment Opportunity Commission had already stated that companies can indeed mandate reception of the coronavirus vaccine for workers who are carrying out their duties in-person.

In a poll by Fisher Phillips last month on employers regarding coronavirus vaccination requirements, 83% of the more than 600 respondents said that they had no such stipulations — which was surprisingly up from a level of 64% in January.

This may signal an unwillingness to wade into such waters on the part of many employers.

The Texas court ruling upholding Houston Methodist’s mandatory coronavirus vaccine policy may encourage some remaining employers into requiring inoculations, but the negative publicity and hurt feelings inside workplaces may not be worth it for some employers.

“Look at the all the attention, all the distractions,” Troutman, the partner at Fisher Phillips, points out. “You don’t want that kind of distraction if you can maintain a safe workplace without a mandate,” he added.

“It’s a fight you may not want, because you still may walk away with a few bumps and bruises.”

Healthcare workers occupy special place in coronavirus vaccine debate

He continued, explaining that naturally, health care facilities are places where patients workers are charged with caring for may be immuno-suppressed, he noted. Even those patients who have been vaccinated may still be at risk of contracting the virus because of their diminished immune systems.

A number of healthcare employers are requiring the coronavirus vaccine for their employees. A survey of 660 employers with a total of 5.3 million workers conducted from May 18 through May 29 by Willis Towers Watson WLTW, 3% of respondents said they were now requiring vaccination and 15% were “considering” such a requirement.

Many of these employers also allowed time off to get the shot as well. That survey determined that three percent of healthcare employers were currently demanding coronavirus vaccinations, but 29% were currently either planning or weighing such mandates.

NewYork-Presbyterian Healthcare System recently announced their own deadline of September 1 for its own staff to receive at least the first coronavirus vaccine dose. The gigantic healthcare system is almost twice as large as Houston Methodist, with more than 48,000 employees and affiliated providers.

“Please note that compliance — either by vaccination or exemption — will be required for your continued employment,” the healthcare giant warned its employees in the statement.

Dr. Jean Moore, the director of the Center for Health Workforce Studies, based in the State University of New York, Albany’s School of Public Health, told Marketwatch that vaccine requirements for healthcare workers are still being ironed out and it is still early on in the process.

She stated that hospitals must weigh the pending legal appeals across the country with the attitudes of their workers. When pressed, she said that she believes mandates are appropriate for healthcare workers. Despite some hospitals shrinking away from making this decision, she said, “the safety of other patients and workers are at stake.”

“No jab, no job” not the UK way

Paris Smith, a legal firm with a number of offices in the UK, advised citizens there that as of now, the government there has not decreed that the vaccine be mandatory for anyone.

The government guidelines on vaccinations say that individuals must be given enough information to enable them to make a decision before they can give consent.

UK officials are standing firm on their promise that every adult will be offered the COVID-19 vaccine by July 31, however, opening up a debate on whether employers should be able to force their employees to receive the vaccine. Recent headlines blaring “No jab, no job” have heightened the interest in whether or not this can legally become a reality in Great Britain.

1984 UK legislation specifically prevents government from requiring coronavirus vaccination

Paris Smith attorneys state that “By law, the Public Health (Control of Disease) Act 1984 gives the government the power to prevent and control an infection. However, the legislation specifically prevents a person from being required to undertake medical treatments such as vaccinations.

“Accordingly, further primary legislation would need to be introduced in order to legally mandate a COVID-19 vaccination.”

The law firm then points out that, much like in the US, an employer who requires employees to receive a coronavirus vaccination could potentially be open to the risk of a discrimination claim on the grounds of disability, age, religion or belief.

In addition, if an employer were to dismiss an employee for the reason of refusing to take a coronavirus vaccine, they could be opening themselves up to an unfair dismissal claim if that person has worked there at least two years.

Refusal of “reasonable management request” could be grounds

Paris Smith says that an employer “may dismiss an employee who refuses to comply with a ‘reasonable management request.’ Therefore, if it is considered that taking the vaccine is a reasonable management request, an employee may be able to be dismissed for refusing to comply.”

The firm goes on to state that these cases will require careful analysis one by one and the outcome will be dependent on the specific circumstances of each. If an employee is not only refusing to take a vaccination and is also refusing to come into the workplace, it says, an employer should firstly consider alternatives such as change of role, regular testing or permanently working from home.

In circumstances in which contact with customers, clients or other employees is necessary, “steps may need to be taken when employees are refusing to come into work,” it states.

However, the situation becomes quite complex, Paris Smith says, if an employee is refusing to take the coronavirus vaccine for legitimate reasons and is still happy to come into work. “An employer would be ill-advised to dismiss them. An employer should thoroughly consider an individual’s reasons for refusing to take the vaccine before making any decisions,” it cautions.

US’ coronavirus vaccination stance similar to the UK

SHRM, a nonprofit association for human resources professionals around the globe, weighed in on the subject recently, with experts giving their thoughts on just how this situation can be managed in the United States.

It acknowledged that indeed some employers in the United States have fired workers who refused to take the vaccine.

A woman in Conway, Arkansas allegedly was discharged for refusing to be vaccinated, according to news radio station WPIX 11 in New York. In addition, a New York restaurant allegedly fired a waitress who refused to receive the COVID-19 vaccine, according to The New York Times.

The Wall Street Journal also reported that some employers are taking the tack of mandating COVID-19 vaccinations before job applicants are even hired in the first place.

The US Equal Employment Opportunity Commission (EEOC) has now weighed in with guidance that answers some workplace vaccination questions. The regulatory authority states that employers may encourage or even require COVID-19 vaccinations, but their policies must still comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws, the EEOC states.

Accommodations made for those with disabilities

“An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated,” stated John Lomax, an attorney with the law firm of Snell & Wilmer in Phoenix. “Additionally, if an objecting employee is a union-represented employee, the employer may need to bargain and reach an agreement with the union before mandating vaccines.

“If an employee refuses to obtain a vaccine, an employer needs to evaluate the risk that objection poses, particularly if an employer is mandating that employees receive a COVID-19 vaccine,” Lomax said in the SHRM report.

Under the ADA, an employer can enforce a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

The EEOC said employers should evaluate four factors to determine whether a direct threat exists, including the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm.

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

“Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration,” the EEOC said.

Employers and employees should work together to determine whether a reasonable accommodation can be made. Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said employers should evaluate the employee’s job functions
and whether there is an alternative job that the employee could do that would make vaccination less critical.

In addition, they should explore how important it is to the employer’s operations that the employee be vaccinated.

Religious accommodations at the fore once again

The US law called Title VII requires an employer to accommodate an employee’s sincerely-held religious belief, practice or observance, unless it would cause an “undue hardship” on the business. US courts have ruled that an undue hardship is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.

The definition of religion is broad, of course, and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC.

“If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.”

“If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could exclude the employee from physically entering the workplace,” said Johnny C. Taylor, Jr., SHRM-SCP, the Society for Human Resource Management’s president and chief executive officer.

“But this doesn’t mean an individual can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.”

In addition, a nurse who refuses to administer a vaccine for religious reasons may be discharged if accommodations would result in an undue hardship. But the employer must first attempt to reasonably accommodate the nurse, Taylor maintains in the SHRM report.

“If an employer plans to require its employees to get a COVID-19 vaccine, it should develop a written policy,” Hechtkopf stated. For employees who refuse to be vaccinated, she said, the employer needs to determine the reason why.

In addition to legally protected reasons, employees may also have general objections to receiving a COVID-19 vaccination that do not require a reasonable accommodation.

“Employers considering mandating vaccines should give very serious consideration to this issue,” said Brett Coburn, an attorney with Alston & Bird in Atlanta.

Employers may be better off offering perks for vaccinations

If a significant portion of the workforce refuses to comply, the employer will be put in the very difficult position of either adhering to the mandate and terminating all of these employees, or deviating from the mandate for certain employees, which Coburn said can increase the risk of discrimination claims.

“Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” he said. For example, employers may want to do develop vaccination education campaigns or make obtaining the vaccine as easy as possible for employees.

In addition, they could cover any costs that might be associated with getting the vaccine and even provide incentives to employees who get vaccinated.

They can also provide paid time off for employees to get the vaccine and recover from any potential side effects.

Kevin Troutman, an attorney with Fisher Phillips in Houston, also suggested offering incentives before going ahead with a mandatory vaccination policy.

“Communicate clearly and often with employees and help them understand how vaccinations will make for a safer workplace,” he said. “Lead by example and ensure that management takes the vaccines first.”

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