More unvaccinated workers will be fired this year for refusing to get the Covid-19 vaccine, and they don’t have much legal recourse to fight back.
Employers have leeway, generally, to issue such mandates, so long as they account for religious and disability accommodations. Thus far, private companies have largely been successful in defending such policies in court.
These mandates can be imposed by companies regardless of the outcome of pending legal battles over the federal government’s attempts to require vaccination for large swaths of the U.S. workforce. The Biden administration has been defending a suite of rules mandating the vaccine for federal-contractor and health-care workers, and requiring large employers to require the shot or regular Covid-19 testing.
1. Who is at Risk of Termination?
About 36% of workers say their employers are mandating the vaccine, according to the most recent Gallup poll from mid-December. Gallup estimates that 25% of U.S. workers are unvaccinated against Covid-19, and roughly 5% of those say they plan to get vaccinated.
Many large companies that receive federal contracts previously said they planned to comply with a federal government order requiring shot mandates, including top contractors
In certain areas, firing workers who refuse to be vaccinated has raised concerns about exacerbating labor shortages, employment attorneys have said.
But while thousands of workers have reported they’d rather be fired than get the vaccine, they remain a small percentage of the overall workforce.
2. Who’s Winning in Court?
Dozens of lawsuits have been filed against vaccine mandates from private employers, state and local governments, and the Biden administration.
Private companies and state and local governments have largely prevailed in court, while federal measures continue to be locked in litigation, with two of the Biden mandates having been taken up by the U.S. Supreme Court.
Private employers, especially, benefit from “at-will” employment, meaning they can generally fire employees for any reason so long as it doesn’t violate the law or breach a contractual agreement.
They also have a responsibility to keep their workers safe, and can argue that unvaccinated employees, including those seeking exemptions, can harm other workers or burden operations.
3. What About Vaccine Exemptions?
A growing number of lawsuits are accusing employers of unlawfully failing to accommodate workers whose religious beliefs prevent them from becoming vaccinated.
Many other cases are also pending, as companies like Boeing report receiving thousands of religious exemption requests.
Private employers have a duty under Title VII of the 1964 Civil Rights Act to engage in an interactive process with workers who request religious accommodations.
However, employers have a strong defense if they choose to reject such accommodations for vaccine-hesitant workers. The U.S. Supreme Court’s 1977 ruling in TWA v. Hardison allows companies to deny a worker’s religious accommodation request—here, a vaccine exemption—if the accommodation would pose a trivial burden on its operations.
Employees with disabilities similarly can request a vaccine exemption as a disability accommodation under the Americans with Disabilities Act. But employers can also reject requests that impose an undue hardship on them.
4. Can Testing Be an Accommodation?
Regular Covid-19 testing could potentially be an accommodation option for religious workers or those with disabilities who refuse the vaccine, attorneys said.
Various governments last year explored “soft” vaccine mandates that either require the shot or regular testing and masking. Flexibility in that regard is a central part of the Occupational Safety and Health Administration’s emergency standard for private employers that’s being challenged by Republican attorneys general and business groups—one of the cases now being considered at the Supreme Court. The rule provides employers with the latitude to offer a testing option.
Proponents of a testing option have said it’s a way to boost workplace safety without generating as much employee blowback and litigation as no-jab, no-job rules.
Yet questions remain about whether the accommodation would be “reasonable,” given that tests are costly and the surge in the Omicron variant has led to test shortages.
Meanwhile, private insurance companies and group health plans must begin covering the cost of at-home, rapid Covid-19 tests kits, beginning Jan. 15, to comply with a Biden administration requirement.