Frustrated with the high number of employees that did not show up for work in the fall and winter last year, Jim Duncey, the owner of Duncey’s Caps, Inc., issues a memo to all employees that they must provide proof that they got a flu vaccine shot by January 1, 2018 or they would be fired. Tommy Goinmyownway protests, saying that his religious beliefs prohibit him from getting vaccinations. New Year’s Day comes and Tommy is fired after he doesn’t provide the required proof. As he is escorted out of the plant Tommy threatens to sue Duncey’s for discrimination. Does he have a claim?
Is Duncey’s Firing of Tommy Okay?
Probably not. Many private employers believe flu vaccinations are a safety issue in the workplace. If Duncey’s Caps is in an at-will employment state, Duncey can terminate Tommy and doesn’t have to give a reason at all. This recently happened when 50 employees of a Midwest hospital chain were fired for failing to get flu shots. If employees are not at-will, or a member of a union, their contractual terms may prohibit the employer from firing them for refusing to get vaccinated.
Here, however, Duncey’s fired Tommy because he did not get vaccinated. The EEOC has held that an employee is entitled to ADA disability protection if they have a sincere religious belief that prevents the employee from getting a vaccination.
Could an Employee Have a Claim Against Duncey’s if They Get Sick?
Potentially. If the employee already has a weakened immune system, and the employer knows that fact but still requires the employee to get vaccinated, the employer might have some liability to the employee if they have a severe adverse reaction to the vaccination.
Tilting the Scales in Your Favor
Unlike Duncey’s, you should consult an employment lawyer before issuing a new employee policy so that you have a clear understanding of what you can and cannot do. Otherwise, you could end up on the short end of an employment discrimination lawsuit like Duncey’s did.