Across the country, U.S. citizens and residents now have access to the COVID-19 vaccine. But many are hesitant or medically unable to be vaccinated. Could opting out of the Coronavirus vaccine put your job at risk, or will state or federal laws protect you against vaccine discrimination?
In June, 2021, more than 150 employees of the Houston Methodist Hospital System resigned after being suspended or were terminated for refusing to get a COVID-19 vaccine. The hospital system imposed a vaccine requirement with the deadline of June 7. Anyone who hadn’t been fully immunized by that date was suspended and ultimately terminated.
Many of the workers filed an anti-discrimination lawsuit in the United States District Court, Houston Division. They said despite FDA emergency approvals, the vaccines were “experimental and dangerous.” The district court judge didn’t think that gave the plaintiffs the right to say no when public safety was at issue. The opinion stated:
"Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker."
Because receiving a COVID-19 vaccine was not an illegal act, the court said their refusal was not protected from employment consequences.
But that could change. Texas is one of many states considering laws that protect employees from anti-vaccine discrimination. Like most of the proposed bills, the Texas proposal against “Discrimination Based on COVID-19 Vaccination Status” would make it an “unlawful employment practice” for an employer to fire, refuse to hire, or otherwise discriminate against an employee or applicant because the individual has not received a COVID-19 vaccine. The law would also apply to labor organization membership and employment agency referrals.
Notably, the proposed vaccine discrimination bills are one-sided. They would prevent an employer from making employment decisions because an employee refused vaccination, but would not give the same protections to employees who sought the protection of the vaccine against their employers’ will or policies.
The question of whether you can be fired for refusing a vaccine may be new, but there are already laws that control what an employer can or cannot do in response to employees’ medical choices. The Equal Employment Opportunity Commission (EEOC) and the Centers for Disease Control (CDC) have said that employers can lawfully require employees to get vaccinated, as long as they make accommodations for employees with a medical or religious reason to decline vaccination. Even without the states’ laws to protect those who choose against vaccination, employees may be protected from discrimination in the workplace under these federal laws.
The Americans with Disabilities Act (ADA) allows employers to ask medical questions of new employees as long as they ask everyone the same question. However, if the question is, “Are you vaccinated?” and the answer is, “No because I can’t be,” you may still be entitled to protection. The ADA says that if a person’s medical condition prevents them from meeting a specific work requirement -- in this case vaccination -- the employer must make reasonable accommodations for that disability. This might include:
Title VII of the federal Civil Rights Act of 1964 protects against religious harassment and discrimination. This doesn’t only extend to the formal tenets of an organized religion, but also to any sincerely held religious, ethical, or moral belief. There have been cases in the past that have protected employees’ and parents’ religious objections to vaccinations. Whether the courts will allow those cases to cover cases of COVID vaccine discrimination remains to be seen.
Whether or not states enact vaccine anti-discrimination laws, those who have medical or religious reasons to avoid vaccination may still be protected from workplace discrimination due to their choice. At Eisenberg & Baum, our employment discrimination attorneys, are monitoring these state bills and the federal courts’ rulings about Coronavirus discrimination. We will help workers protect their rights under Title VII, the ADA, and state civil rights laws. If you were disciplined or fired for refusing vaccination, contact us. We'll meet with you and help consider your options to protect your right to make your own medical choices.