I’m Quoted in the Workplace Coach & Anchorage Daily News

Q: I can’t believe it. My employer fired me because I wouldn’t get vaccinated.

I suppose you could say they “warned me.” I’d gotten the “You need to show proof of vaccination by September 30th, or we’ll consider that you voluntarily resigned” emails, but I couldn’t believe they’d fire all of us. There’s a lot of us who work here who don’t want to inject this stuff into our bloodstreams. I thought our managers would see reason and cave.

I got a notice Thursday evening stating that unless I submitted proof of vaccination, I would receive my final direct deposit on Friday. Is this legal? Don’t I have employee rights? Can I sue?

Answer:

As a private individual, you have the right to choose whether to get vaccinated. Your employer has the right to require all employees, other than those with legally valid exemptions, be vaccinated.

“These employer mandates are analogous with the employment at will doctrine that Alaska and many other states observe,” notes attorney Charles Krugel. “Valid exemptions relate to medically advised for religion-based reasons for avoiding vaccination. An employer may require medical documentation or proof of a sincerely held believe before granting the exemption.” Further, states Krugel, “Employers need to engage in an interactive discussion with an employee to determine an exemption’s validity. Employers can’t simply make a blanket statement that one medical reason or religious belief is more valid than another without this interactive discussion.”

Employers in many states have fired employees who’ve defied their employer’s vaccination mandates. On Sept. 28, United Airlines, noting that 96 percent of their employees have been vaccinated, announced it would fire 593 unvaccinated employees. Of the remaining 4%, 3% are seeking an exemption, which might result in their being placed on leave without pay. Six employees who are seeking accommodations have sued United, arguing that being placed on an indefinite unpaid leave of absence means their employment has effectively been terminated. These six will remain employed until Oct. 8. Norvant Health, noting that over 99% of the 35,000 employees have been vaccinated, fired 175 unvaccinated employees and suspended another 375, giving them five days to get at least one shot. CNN, which had allowed employees to return to the office if vaccinated, fired three employees in September when it learned they hadn’t gotten vaccinated.

Some employers have offered employees the opportunity to work remotely or undergo weekly testing. Some of these employers intend to conduct weekly onsite COVID tests; others will require employees to be responsible for their own testing. Some employers, such as Delta Air Lines, require unvaccinated employees to pay $200 more monthly for their company health plan. Other employers restrict office space and company gyms to vaccinated employees only. MGM Resorts International won’t pay unvaccinated employees for time off to quarantine if they test positive for COVID.

You ask if this is legal. Employers have the right to set the terms and conditions for employment, unless they intentionally or unintentionally discriminate, violate employee rights or public policy. Further, federal and many state and local laws support your employer’s decision. The federal Equal Employment Opportunity Commission has said U.S. employers can require all employees entering a workplace to be vaccinated if these employers provide accommodations for those remaining unvaccinated due to disability or sincerely held religious beliefs. Employers can fire employees who don’t comply with an employer’s policies, including the workplace safety protocols.

You asked if you can sue. Any fired employee can sue, but your lawsuit will likely fail. More than 100 Houston Methodist employees sued challenging their employer’s vaccination mandate. A U.S. District judge dismissed the lawsuit, ruling that the employee plaintiffs could choose to refuse vaccination and work elsewhere.

Finally, although you expected your employer to cave to your anti-vaccination decision, your employer has mandated vaccination to maintain a reasonably safe work environment, minimize their business risks and manage their legal liability. You now have to answer the question — do you want to keep your job if it means getting vaccinated or do you need to find an employer more accepting of unvaccinated workers?