Can any company fire you for not getting a COVID-19 vaccine or it depends on the contract you've signed in the U.S.?

Question

Can any company fire you for not getting a COVID-19 vaccine or it depends on the contract you've signed? If your contract doesn't specify anything except the yearly salary, does it allow your company to fire you for not getting a COVID-19 vaccine?

Answer 1

Yes, According to the US EEOC

In the united-states the Federal EEOC (Equal Employment Opportunity Commission) which enforces federal anti-discrimination employment laws, Title VII of the Civil Rights Act, the ADA (Americans with Disabilities Act), the Age Discrimination in Employment Act, GINA (Genetic Information Nondiscrimination Act) and the Rehabilitation Act. has stated that employers may require employees to obtain vaccination for COVID-19, subject to various limitations and restrictions. This is specifically covered in section K of the EEOC FAQ. However, this is limited to the Federal laws which the EEOC enforces, particularly the ADA. Other Federal laws and state laws may modify this.

Specific EEOC Guidance

Specifically the EEOC says (in the link above) that:

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. ... (section k.1) (rmpahsis added)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees ... (section k.2)

Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21. As of May 2021, the federal government is providing vaccines at no cost to everyone ages 12 and older. (SECTION K.3)

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Under the ADA, may an employer require a COVID-19 vaccination for all employees entering the workplace, even though it knows that some employees may not get a vaccine because of a disability? (12/16/20, updated 5/28/21)

Yes, provided certain requirements are met. Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. (Section k.5)

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If an employer requires employees to get a COVID-19 vaccination from the employer or its agent, do the ADA’s restrictions on an employer making disability-related inquiries or medical examinations of its employees apply to any part of the vaccination process? (12/16/20, updated 5/28/21)

Yes. The ADA’s restrictions apply to the screening questions that must be asked immediately prior to administering the vaccine if the vaccine is administered by the employer or its agent. An employer’s agent is an individual or entity having the authority to act on behalf of, or at the direction of, the employer.

The ADA generally restricts when employers may require medical examinations (procedures or tests that seek information about an individual’s physical or mental impairments or health) or make disability-related inquiries (questions that are likely to elicit information about an individual’s disability). The act of administering the vaccine is not a “medical examination” under the ADA because it does not seek information about the employee’s physical or mental health. (Section k.7)

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Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance? (12/16/20, updated 5/28/21)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests.

However, because the pre-vaccination screening questions are likely to elicit information about a disability, the ADA requires that they must be “job related and consistent with business necessity” when an employer or its agent administers the COVID-19 vaccine. (section k.12)

Requiring an employee to receive a COVID-19 vaccination administered by the employer or its agent would not implicate Title II of GINA unless the pre-vaccination medical screening questions include questions about the employee’s genetic information, such as asking about the employee’s family medical history. As of May 27, 2021, the pre-vaccination medical screening questions for the first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do not seek family medical history or any other type of genetic information. (sectuion K.14)

Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a doctor, pharmacy, health agency, or another health care provider in the community? (12/16/20, updated 5/28/21)

No. An employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA (section k.15)

State Regulations

Some US stated have passed or proposed laws or regulations banning or restricting so-called "vaccine passports" (credentials documenting having received vaccine does). These mostly deal with access to government services. Some also deal with access to private facilities. Few seem to be aimed at employment. S this page from Health IT for a list (page updated 1 July 2021).

The page "Do State Bans on Vaccine Passports Impact Employer Policies?" from SHRM says:

Officials in some states are blocking businesses and government agencies from requiring people to produce vaccine passports—documentation that they've been vaccinated against COVID-19. But in most states, private employers can continue to ask whether workers are vaccinated, and employers in some locations may be obligated to do so. ...

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Brooke Schneider, an attorney with Withers in New York City, explained that while some states are banning vaccine passports in some situations, many are still allowing employers to ask their employees whether or not they have received a COVID-19 vaccine.

Schneider noted that asking employees whether or not they have received a vaccine is different than requiring a vaccine passport. "Inquiring about vaccination status will ultimately enable employers to better create or revise their return-to-work policies with an aim toward providing sufficient health and safety protections without being overly restrictive."

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Montana's law is the most restrictive for employers. Gov. Greg Gianforte signed a bill into law on May 7 making vaccination status a protected category. With some exceptions for health care providers, Montana employers are prohibited from discriminating against employees and job applicants based on their vaccination status. Additionally, employers in the state cannot require employees to receive vaccines that have only emergency use authorization from the U.S. Food and Drug Administration or vaccines that are undergoing safety trials. < Florida's law also applies to private businesses, but not in the employment context. Gov. Ron DeSantis issued an executive order and subsequently signed a bill that takes effect July 1 banning business in the state from requiring customers to prove that they've received a COVID-19 vaccination before receiving services. The Florida law also has exceptions for health care providers. Notably, Florida's law applies to "patrons or customers" and does not mention "employees".