Legal Risks in Requiring Employees to Receive the COVID-19 Vaccine

Brian P. Goodman | 04.28.21

As COVID-19 vaccines continue to roll out across Wisconsin, the big question is whether employers can legally require employees to get the COVID-19 vaccine. The answer is not a simple ​“yes” or ​“no” because there are exceptions and legal risks in taking such a strong approach to vaccination. Currently the Pfizer, Moderna, and Johnson & Johnson vaccines for COVID-19 have only been approved for emergency use by the Food and Drug Administration (FDA), which means that terminating an employee for refusing to receive the vaccine could violate unjust termination principles under Wisconsin law. The bottom line is that currently no state or federal law directly prohibits Wisconsin employers from requiring employees to receive the COVID-19 vaccine, but doing so exposes employers to many forms of potential liability. The legal risks outlined below demonstrate that mandating vaccines is not recommended at this time, and dealers instead may want to consider simply encouraging employees to get vaccinated.

Unjust Termination Claims

Because the FDA has only granted emergency use authorization for the COVID-19 vaccines, patients have a right to refuse the vaccine from their medical provider. Therefore, terminating an employee for refusing to get a COVID-19 vaccine that has only been authorized by the FDA for emergency use could result in liability for unjust termination. An employee that has been terminated for refusing the vaccine could claim that you forced them to choose between their job and their right under FDA emergency use authorization to refuse the vaccine. In Wisconsin, this claim is called ​“wrongful discharge in violation of public policy” – a title that in and of itself raises public relations concerns. Once the FDA gives final approval to a vaccine, potential liability for unjust termination will likely no longer be in play, but a timeline for final approval is currently unknown. 

Disability and Religious Discrimination

Mandating the COVID-19 vaccine also implicates legal issues related to disability and religious discrimination. Wisconsin dealers that employ one or more employees are subject to the Wisconsin Fair Employment Act, which, among other things, prohibits employment discrimination on the basis of disability and creed. Wisconsin dealers that employ 15 or more employees are also subject to similar federal laws: the Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disability; and Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on religion. Under all three of these applicable laws, employees may be able to claim a disability or religious exemption and refuse to be vaccinated. 

Dealers who decide to mandate the COVID-19 vaccine should be prepared for when an employee states that they are unable to receive the COVID-19 vaccine due to a disability or sincerely held religious belief. Navigating an appropriate response to that situation is not easy. According to the Equal Employment Opportunity Commission’s most recent guidance on the COVID-19 vaccine, employers cannot remove an employee from the workplace without first providing a reasonable accommodation for the disability or religious belief that does not create an undue hardship to the employer. Because each situation is unique, we encourage dealers to speak with an attorney to understand how to identify a reasonable accommodation request, conduct an individualized direct threat analysis when appropriate, assess undue hardship under the appropriate legal standards, and determine the best way to proceed in a given situation. 

Practical Considerations

Dealers should also be aware that although a mandatory vaccination policy is potentially permissible under current law, implementing one raises important practical considerations. For example, even if you are able to provide an employee with a reasonable accommodation and not require them to receive a vaccine, you might be left with uncertainty surrounding enforcement of mask policies equally among unvaccinated and vaccinated employees. And employees should be discouraged from asking questions about other employees’ vaccination status because it could make others uncomfortable, particularly those who could not receive a vaccine for religious or disability reasons. Beyond that, dealers would need to strategically introduce any vaccine policy to their workforce with the understanding that they might receive push back from employees who disagree with it. Proactive communication that advises employees of their rights and the purpose of the policy might soften the blow. 

Summary

At the end of the day, even mandating the COVID-19 vaccine does not mean you would be able to fire employees who elect not to receive it. This fact alone weighs against implementing a policy that requires employees to be vaccinated. Add that concern to various public relations problems and intricate anti-discrimination laws, and you have a challenging situation to navigate that is likely not worth the risks. Dealers considering whether to require employees to be vaccinated should strongly evaluate the practical effects and the impact that such a policy may have on their employee morale. Instead of mandating vaccinations, dealers might be better off simply facilitating or encouraging employees to get the COVID-19 vaccine and letting herd immunity do the rest. 

Click here to read more from Boardman Clark’s Labor and Employment team on this topic and other complex issues employers are facing related to the COVID-19 pandemic.