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With President Biden directing states to make the COVID-19 vaccine available to all adults by May 1, 2021, private sector employers have focused on two questions. First, may a private sector employer make it mandatory for employees to receive the COVID-19 vaccine? Second, may an employer in New York State fire an employee who refuses to be vaccinated?

The short answers are “yes” and “yes.” But a well-advised private sector employer will take a more nuanced approached to this issue.

At-Will Employment

New York State is an at-will employment state. That means, an employer can terminate an employee at any time, for any reason, provided that reason is not unlawful. An employer in New York may lawfully mandate vaccination. But there are exceptions.

As with most COVID-19-related questions, there is little settled jurisprudence in this area as of this writing. However, Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), combined with New York’s Human Rights Laws, still govern in this area. In most cases, unless an employee presents a compelling health- or disability-related reason for an exemption, and can demonstrate that she can perform her job without putting others at risk through an accommodation exempting her from vaccination, a court is likely to find it an “undue hardship” to allow that employee to remain unvaccinated.

The U.S. Equal Employment Opportunity Commission (EEOC) issued guidelines that said, in part:

“Employers may mandate a COVID-19 vaccine only if they do so in accordance with applicable federal, state, or local laws, including the EEO laws enforced by the EEOC.” These guidelines suggest that an employer may need to engage in a “direct threat” analysis. To meet this standard, the EEOC explains that an employer must have a reasonable belief, based on objective evidence, that the employee will pose a “direct threat” to the health or safety of her- or himself or other employees in the workplace. In performing this analysis, an employer must constrain its questioning of an employee to “job-related” questions which are “consistent with business necessity.”  To see the full guidance set forth by the EEOC, click here.

Don’t React, Research

In most cases, employers have invested time, money and resources into hiring and training employees. They are valuable members of your team. While it might be instinctive to terminate someone who refuses to follow a policy, that reactionary response could be costly in the long run. It may cost you a good employee and hurt productivity as you hire and train a replacement. It could also impact organizational morale. You likely just fired not only a coworker, but a person other employees were friends with. The trickledown effect from a single firing can cause a ripple effect felt throughout the organization.

If you have an employee who refuses a company-mandated vaccine, she is not alone. A report issued by the Society for Human Resource Management found that 28 percent of U.S. workers surveyed were willing to lose their job rather than receive the COVID-19 vaccine.

There could be any number of reasons an employee might refuse a vaccination. An employer must assess several factors, including the duration of the risk; the nature and severity of the potential harm; the likelihood that the harm will occur; and the imminence of the potential harm. [See this article  from the NYSBA for additional information].

Keep in mind that Title VII and the ADA remain in play when considering keeping the employee out of the office setting: an employee cannot be excluded from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.

A good employer will take the time to find out why. Does the employee have medical issues? Do they not have enough information on the vaccine and how it works? Do they know a friend or family member who had a bad reaction to the vaccine? Are they simply scared? Getting to the root of the refusal will help you understand your employee better. It will also demonstrate compassion.

Once you understand your employee, you may be able to point them toward resources that will ease their concerns. You may also be able to show them how choosing to be vaccinated helps protect their coworkers and your organization’s clients, customers, vendors, etc.  Once they feel better informed and heard, you might be surprised to see how many reluctant employees come on board.

What if they still refuse?

In addition to clarifying the “direct threat” analysis, the EEOC guidelines cited above address how employers should respond to employees who refuse to participate in a mandatory vaccination program due to medical or religious reasons. Specifically, employers have an obligation to reasonably accommodate employees with medical or religious objections to the extent that such accommodations do not impose undue hardships.

If employees continue to refuse to be vaccinated, an employer faces a few difficult choices:

• Allow the employee to continue in their role, unvaccinated
  Pursuant to the Occupational Safety and Health Act, employers are required to provide employees with a “safe workplace.” This means a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.” Given this, allowing an unvaccinated employee with an exempt medical condition could expose an employer to an OSHA violation. Moreover, once you make exceptions to rules for some employees, but not others, you have waded into murky water and you will likely end up on the wrong end of a discrimination claim.  

• Reassign the employee to a new role
  Is there another role in the organization that isn’t front-facing? Does the employee have transferable skills that would allow you to place them in a job where the lack of a vaccination doesn’t impact anyone else? The most obvious option here is remote working. Again, this is a case by case issue, and it won’t work for every employer, but it is worth considering. If you can strike a balance that respects the employees wishes, keeps everyone safe, and allows you to retain the employee that could be the win-win you are looking for.

• Terminate the employee
  As I said at the opening, an employer is generally within their legal rights to mandate vaccinations and terminate an employee that refuses to comply with the policy. Depending on your company, the number of employees you have, the employment record of the employee(s) in question, and a host of other factors, you may decide termination is the proper course of action.

These are challenging, largely uncharted times we are living in. It is difficult for employers and employees who are both trying to navigate the myriad challenges of living in a COVID-19 world. The key takeaways I offer you to consider are these: Try to view the situation through the eyes of your employee, gather as much information as possible before you make any decision, and above all, make sure whatever policies you are implementing, are enforced equally across your organization.

As always, if you are unsure how to best handle a situation with an employee, my colleagues and I are here to answer any questions and offer guidance. It is always advisable to have a consultation beforehand rather than a conflict afterwards.

B. Kevin Burke Jr. is an attorney with Gross Shuman, P.C. He focuses his practice on the litigation of contract disputes, labor and employment issues, intellectual property protection, and trade secret cases. He can be reached at 716.854.4300 ext. 292 or kburke@gross-shuman.com.