This image illustrates someone who has been fired for refusing to follow company policy and get COVID-19 vaccination.

COVID-19 Vaccination & Wrongful Termination

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Can a company fire an employee for refusing to become vaccinated? Yes and no. The general answer is “yes,” but there are exceptions.

At Gardner Employment Law, we pride ourselves on staying current in the law.  If you need advice about the legalities of vaccinations at work, give us a call.

Can My Employer Require That I Get Vaccinated?

The short answer is yes. Recent guidance from the Equal Employment Opportunity Commission says that there is no federal law that prevents employers from requiring vaccination. Employers must maintain a safe working environment.  That includes protecting against COVID-19.  To date, the best precaution for preventing the spread of the coronavirus at work is vaccination.

Also, Texas law permits employers to change the terms and conditions of employment so long as the employer gives employees unequivocal notice of the change beforehand.  We explained this legal principle in our FAQ section. If an employer decides to require vaccinations, it must give notice beforehand. The employees then have the choice to either stay and become vaccinated – or leave and go to work somewhere else.

There are two exceptions: (1) disability and (2) religious exemptions. Employers must follow the ADA (Americans with Disabilities Act) and Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination.  Under these federal statutes, companies must reasonably accommodate those who present valid religious beliefs or a disability that prevents them from being vaccinated. In those instances, employers generally will permit the employees the accommodation of wearing a mask, continue social distancing, and other such safety precautions to prevent spreading the virus to others.

The U.S. government, some universities, and even large employers such as Walmart, already require employees to be vaccinated. According to The New York Times, as many as 7 million federal employees are now required to have COVID-19 vaccination. In the private sector, other companies such as Google, Disney, and Uber have vaccine mandates underway to enhance workplace safety.

No Texas law prevents an employer from requiring vaccinations against COVID-19. The Wall Street Journal reported a major court case in June 2021 which upheld Houston Methodist Hospital’s decision to fire 117 workers for refusing to get vaccinated. Federal Judge Lynn Hughs stated, “The hospital system’s policies were not coercion against staff. They were a choice the hospital system made ‘to keep staff, patients, and their families safer.’”  The judge’s order followed Texas law. Notably, the Texas Supreme Court opinion of Hathaway v. General Mills, issued decades ago, permits employers to change the terms and conditions of employment if unequivocal notice is given beforehand, which Houston Methodist followed.

However, the battle of “public opinion” over vaccinations still rages. States such as Texas, Arkansas, and South Carolina have implemented laws to prevent businesses from requiring proof of vaccination from customers. It is possible that state legislators may attempt to bring similar prohibitions into the employment arena.

Can an Employer Fire Someone for Refusing to Become Vaccinated?

The Houston Methodist Hospital case illustrated that the answer is “yes.” Unless you have valid religious reasons or an underlying health condition that prevents you from being vaccinated, you could face the consequence of termination for not getting the vaccine.  This will not be considered “wrongful termination.”

If you have reasons other than religion or disability for getting the vaccine, such as lack of access or time to get vaccinated, employers may offer paid time off from work or allow you to use paid sick leave. These incentives are just a few of the measures employers provide as a means to increase workplace vaccination rates. The law does not require any incentives.  Many employers offer incentives to encourage their employees to become vaccinated.

When a company establishes an actual policy requiring vaccination, refusal to get the vaccine then becomes a policy violation. Based on the Texas Workforce Commission’s definition of termination for “cause,” violators of company policy cannot qualify for unemployment benefits when the policy was enacted to protect employees’ safety at work. While the coronavirus, especially with the Delta variant spreading so quickly, constitutes a public health issue in the broad sense, private employers are legally required by OSHA to update their health and safety policies. The law protects those employers who fire employees for not following such policies.

Are There Any Exceptions to Vaccine Mandates?

Yes. As mentioned above, employers must reasonably accommodate those who follow valid religious practices or have a disability preventing them from being vaccinated. However, this does not mean that the employee also can refuse to wear a mask, socially distance, or quarantine. Employers may require these alternative measures as a reasonable accommodation. While employers must make reasonable accommodation for these two exemptions, employers must continue to promote workplace safety amidst the COVID-19 pandemic.

The medical industry requires vaccination or very strict proof of the two legal exceptions noted above.  Also, where job duties require employees to work in-person, more and more employers are requiring vaccination. In these work settings, employers may also employ a rigorous testing policy, masking, and maintaining social distance.  In industries that do not require work to be done in-person, employers may permit employees to work from home. If an employee refuses to comply with any of these alternative safety measures, employers can and will fire them.

Is Requiring a Vaccination a Violation of HIPPA?

It is not against HIPPA (Health Insurance Portability and Accountability Act) for employers to request vaccine documentation due to COVID-19. The New York Times reports that the HIPAA law “covers what your healthcare provider can share with others, rather than employers and what they can ask for.” Employers are precluded, however, from disclosing the fact of vaccination to fellow employees, as the EEOC instructs. Based on the ADA, employers cannot share health information with other employees.

Are You Facing a Dilemma Over A Vaccination Mandate?

If you are unsure of your legal rights about being vaccinated to return to work, Gardner Employment Law can help you. Give us a call.

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