Can you be fired for refusing to get vaccinated against COVID-19?

By Megan Cerullo

/ MoneyWatch

More U.S. businesses have started requiring employees to get their COVID-19 shots, leaving the unvaccinated with a stark choice: Get jabbed or seek work elsewhere. 

A range of large companies, from CVS Health to United Airlines, have announced vaccine mandates since the Food and Drug Administration last week gave final approval to the Pfizer-BioNTech vaccine. So what happens when a worker refuses to get vaccinated?

Under labor laws, employers have the right to set their terms and conditions of employment — if a worker doesn't comply, a company can give them the ax. This also applies for COVID-19 vaccinations, according to the Equal Employment Opportunity Commission.

"The EEOC has made clear that individuals can be required to take the vaccine as a term and condition of employment. That is subject to requests for accommodation based on medical reasons or sincerely held religious belief," Helen Rella, a workplace attorney at New York-based law firm Wilk Auslander, told CBS MoneyWatch.

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Such exemptions may apply if an employee has either a medical condition or a sincerely held religious belief that prevents them from being vaccinated.

"Once an employee makes an accommodation request, the employer has an obligation to engage in an interactive discussion with the employee to determine whether or not accommodation is possible," Rella explained.

In nearly every other instance, an employee who refuses the vaccine may be terminated. For example, a judge in July threw out a lawsuit from a group of 117 unvaccinated Houston Methodist employees over the Houston hospital's vaccine requirement. More than 150 employees who refused to get the COVID-19 vaccine either resigned or were fired after the suit was dismissed. 

"In the employment context, we're talking about private employers who have an absolute right to set the terms and conditions of employment," Rella said. 

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Still, there may be other risks to firing unvaccinated workers, including internal turmoil. As a result, only 7% of businesses say they're firing workers who are not vaccinated, according to a recent survey of 583 companies across a range of industries by Aon, a provider of financial and health products. Indeed, 38% of respondents said they're extending work-from-home options for unvaccinated workers, while 20% said they're requiring periodic COVID-19 tests.

But that reticence appears to be changing fast, spurred both by the growing acceptance of the vaccine and the latest coronavirus wave linked to the highly contagious Delta variant. 

"Employers are back at the decision-making table and are revisiting those decisions around vaccine mandates," Aon Chief Medical Officer Dr. Neal Mills said. "They realize we're in a public health emergency, and they've decided to step up to the leadership mantel and revisit the decisions they need to make to adequately address the public health emergency."

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Meanwhile, many firms may not have to resort to firing noncompliant workers. In some cases, corporate vaccine mandates have pushed the vaccine-hesitant over the edge, compelling workers who wish to remain employed to roll up their sleeves. 

According to the Axios-Ipsos Coronavirus Index, published Tuesday, opposition to getting vaccinated against COVID-19 has waned to its lowest ever level. More than three-quarters of Americans either have been vaccinated or say they are likely to be, up two percentage points from mid-July, according to the index. 

Among unvaccinated individuals, roughly half say they are open to getting inoculated. Among these, half say an employer mandate or incentive, such as a raise or bonus, would convince them to get the shot.  

Starting September 30, for instance, COVID-19 vaccination will be a condition of employment at Bonanno Concepts, a Denver, Colorado-based restaurant group. The restaurant group said the mandate has already swayed folks to get jabbed. 

"We have had 20% of our nonvaccinated employees — almost 20% — signed up to get vaccinated within 24 hours of us rolling out this policy," said Jessica Kinney, director of people for Bonanno Concepts.