Many employers are weighing the pros and cons of requiring vaccinations amongst their workforce. Employees are wondering if they can be fired if they refuse. Notably, in the news, two NFL assistant coaches were terminated for not getting vaccinated. Cole Popovich, co-offensive line coach of the New England Patriots, will not be returning with the team due to his decision not to get the Covid-19 vaccine. In addition, Rick Dennison, Minnesota Vikings assistant coach, was also let go for his decision not get vaccinated. Could an employer fire its employee in Florida for failing to get vaccinated without being exposed to legal problems?
Most likely, yes. Florida is a pro-employer state, and unless you have a contract that says something different, employers can terminate employees at will, without cause. OSHA and the EEOC allow employers (with a few exceptions) to terminate employees who will not get vaccinated. In fact, OSHA already provided an advisory opinion allowing employers the right to mandate the flu vaccine in 2020.
With that said, OSHA also cautioned employers that employees who refuse the vaccine because of a reasonable belief that he/she has a medical condition that creates a danger of serious illness or death may be protected under Section 11(c) of the Occupational Safety and Health Act. In addition, if the employee has a qualifying disability under the ADA, an employer may be required to grant an exemption to a vaccine mandate. Further, an employer must accommodate employees who claim a religiously grounded objection and hold a sincere religious belief. If you have an employee who claims a religious objection, the best practice is to not judge the validity of the employee’s claimed religious practice, but instead engage in an interactive process to evaluate whether the belief is sincere, whether there is a reasonable accommodation available that does not pose undue hardship (perhaps, mandating a mask and social distancing for this employee), and whether you have treated other accommodation requests in a similar and consistent manner.
If you decide to implement a mandatory vaccine policy for Covid-19, you should develop and publish a clear written policy explaining the company’s expectations and clearly describe how an employee may request an exemption or accommodation. A good practice would be to reimburse employees for an out-of-pocket expenses for the cost of the mandatory vaccine and compensate the employee for the time it took to get the vaccine administered. At all times, employees’ medical information must be kept private per HIPAA. You may want to bring a licensed practitioner to your office to provide your employees with the opportunity to be vaccinated at the worksite during working hours.
A safe and healthy workplace is a notable cause, but employers should proceed with reasonable expectations about requiring vaccinations.