As we previously wrote, there did not appear to be any legal barrier to employers requiring its employees to be vaccinated against COVID-19 in order to continue working. As anticipated, the EEOC issued guidance in late-May stating employer-mandated vaccination policies for employees physically entering the workplace do not violate federal employment non-discrimination laws, subject to reasonable accommodations for employees disabilities and/or sincerely held religious beliefs.
In one of the first cases to challenge an employer-mandated vaccination policy, a Texas federal court wasted no time dismissing a case claiming such policies violate Texas law against wrongful termination. Houston Methodist Hospital enacted a policy requiring all employees be vaccinated against COVID-19 in order to continue working. One hundred and seventeen employees sued. The court dismissed the case at the outset, finding the policy legally permissible.
The court concluded the employees’ claim the vaccines are “experimental and dangerous” both “false” and “irrelevant” to whether mandating a vaccine violates Texas’s at-will employment. The employees failed to show it was illegal to terminate someone for not getting the vaccine. The court was similarly unimpressed with the employees’ claims they shouldn’t be forced to receive “unapproved” medicine, pointing to the fact the FDA has not fully approved the vaccines and only given them emergency use authorization (EUA). The court pointed out federal law permits medical products to be used widely under an EUA and “neither expands nor restricts the responsibilities of private employers.”
A similar lawsuit in Arizona would likely have the same, quick unfavorable result. Arizona also has at-will employment, allowing the employer or employee to end the employment relationship with or without cause and with or without notice. It is often said an employer can terminate an employee for a good reason or no reason at all, just not for a bad (illegal) reason. Terminating an employee because they refuse a vaccine is not a bad reason, it is simply part of an employer’s right to determine the conditions of employment. As the Texas court explained:
- [The employee] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.
- If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.
Despite legally permissible, many employers are hesitant to adopt mandatory vaccine policies. Some employers are instead giving employees an incentive to get vaccinated. Whichever route you choose, there are potential pitfalls. If you have questions about implementing your return-to-work policy and vaccines, contact one of the employment lawyers at Mesch, Clark Rothschild for assistance.
