Employers with Mandatory Vaccination Policies Advised to Fire Unvaccinated Workers

Allen Smith, J.D. By Allen Smith, J.D. January 5, 2022
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Someone checking a box that says "No Vaccine"

​Employers are on safer legal footing terminating employees for violating mandatory vaccination policies than imposing lesser punishments, legal experts advise. They say employers should not opt, for example, to withhold pay raises, make only vaccinated workers eligible to apply for internal positions or promote only vaccinated employees.

Many lower courts have upheld employers' mandatory vaccination policies, which, unlike the Occupational Safety and Health Administration's emergency temporary standard, aren't yet before the Supreme Court, though the court may address them in passing.

Dangers of Lesser Punishments

"To the extent that an employer is considering these options as lesser punishments for employees rather than terminating an employee who refused to comply with a vaccine mandate, and thinking that such lesser punishments might be more palatable to vaccine-resistant employees than a true mandate followed by termination, I would encourage them to rethink that analysis for several reasons," said Brett Coburn, an attorney with Alston & Bird in Atlanta.

Allowing an unvaccinated employee in the workplace but taking some other measure as a punishment for being unvaccinated does not do anything to increase employee health and safety, nor does it reduce the risk of COVID-19 transmission in the workplace, he explained. "Punitive measures that do not involve separating an unvaccinated employee or at least requiring the person to continue working remotely are really missing the boat in terms of the very good reasons why employers might decide to mandate vaccines," he said.

Allowing vaccination status to play into compensation decisions could lead to pay equity claims, Coburn noted. For example, if two employees—one male, one female—do the same job and receive the same pay but one is denied an annual pay increase because of vaccination status, that pay disparity could be problematic, particularly in states that have aggressive pay equity laws. "While vaccination status might ultimately turn out to be a legitimate reason explaining the pay discrepancy, that is by no means a clear-cut argument," he said.

Denial of a transfer or promotion due to vaccination status could be challenged based on a protected characteristic, such as race or gender, he added. "It is not clear whether the employee's vaccination status will necessarily hold up in court as a legitimate, nondiscriminatory reason to explain the employment action," Coburn said.

Should more employers require vaccines, the need for any disincentives such as denial of pay and promotion will become unnecessary, said Carole Spink, an attorney with McDermott Will & Emery in Chicago, who agreed that such disincentives are not recommended.

Nonetheless, if an employee is working remotely because of unvaccinated status and the need to work remotely hurts job performance, the employer may consider pay adjustments or denial of promotion, Coburn said. Those decisions should be based on the employee's job performance rather than being based on the person's vaccination status. "The employer would want to make sure it has documented the performance concerns very well and given the employee an opportunity to address and improve on those issues before taking adverse action," he said.

While the disincentives may be legal for most employers, "employers are urged to tie compensation to skills, job duties and experience of each job position rather than facts and circumstances unrelated to the position," said Mary Leigh Pirtle, an attorney with Bass, Berry & Sims in Nashville, Tenn. "For example, if an individual could not perform all job duties as a result of not being vaccinated—such as the employee could no longer travel or interact with customers—then the employer would have a rational basis for reducing that employee's compensation as compared to a vaccinated counterpart who could provide those job duties."

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Caveats for Employers That Want to Implement Disincentives

For employers that want to implement disincentives despite the legal risks, there are four caveats to restricting unvaccinated workers from eligibility for promotions and raises, according to Jennifer Curry, an attorney with Baker Donelson in Washington, D.C., and Baltimore.

First, those employees with a medical condition or sincerely held religious belief who cannot get vaccinated must be exempted from the punishments implemented for otherwise unvaccinated employees.

"In most instances, those exempted employees should be treated like vaccinated employees, except in the case where regular testing is required of unvaccinated employees," she said.

Second, when implementing a change in leave policies that may impact an unvaccinated employee's access to paid sick leave, ensure that the policies comply with state or local paid-sick-leave laws.

Third, if an employer has a workforce that operates under a collective bargaining agreement, the company should consider any obligations it may have to work with the union or to meet the terms of the agreement before restricting unvaccinated employees from certain benefits.

Fourth, any policy implementing a punishment should be in writing and distributed to employees with enough time to allow them to get vaccinated and, if possible, avoid the disincentive.

Nonetheless, "when considering incentives and limitations for vaccinated and unvaccinated employees, it is preferred to give incentives to those who are vaccinated rather than to limit those who are not vaccinated," said Jennifer Huelskamp, an attorney with Freeborn & Peters in Chicago.

Disincentives like not giving pay raises or denying promotions to unvaccinated workers are likely to be considered coercive and prohibited for any employer involved in the vaccine's administration, cautioned Brigid Heid, an attorney with Eastman & Smith in Columbus, Ohio. For other employers, the disincentives likely would be allowed, she explained.

That said, "vaccine incentives and disincentives could create morale issues and even cause employees to quit their jobs, which may be particularly taxing on employers managing labor shortages," noted Jeff Wilcox, an attorney with Hill Ward Henderson in Tampa, Fla.

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