MENU

Tag: at-will

The Legality of an Employer-Mandated Covid Vaccine

March 28, 2021

Generally, Employers Can Make The Vaccine Mandatory

Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.

Employment At-Will

Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.

A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.

Civil Rights Legislation

According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.

There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.

Exemptions For A Mandatory Vaccine.

However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.

Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.

Generally, Employers Can Decline To Make The Vaccine Mandatory

A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.

But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.

Potential Pitfalls Requiring Other Vaccine Considerations

If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.

Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.

Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.

* * *

As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.

To Serve and Protect: Discrimination Against Veterans In Employment is Prohibited

May 21, 2018

On the last Monday in May, Americans celebrate Memorial Day to commemorate all the men and women who have died in military service to the US. But what about those who return from a military tour… and join, or re-join, the workforce. The federal government through Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, for this class of individuals to protect their right to work and to return to work.

USERRA prohibits discrimination against employees and potential employees based on their military service. It also imposes obligations on employers with respect to employees returning to work after a military tour of duty. The most unique characteristics of USERRA make it very different from other employment laws and civil rights law. Consider the following:   

  1. No Employer Bias: courts universally construe USERRA in favor of veterans, on the other hand, many with experience in the field will agree that most courts, especially the 11th Circuit and those within its jurisdiction (Georgia included) generally construe other employment related laws in favor of the employer.
  2. No Statute Of Limitations: USERRA has no statute of limitations for claims that accrued after October 10, 2008 and, in some cases, October 10, 2004. Other employment-related statutes have strict deadlines during which a claim must be brought such as Title VII and the ADA – one-hundred and eighty (180) days, the EPA – two (2) years, etc.
  3. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size whereas laws like Title VII require a minimum of 15 employees, the ADEA requires 20, FMLA requires at least 75 employees within a geographic location
  4. No Termination Without Cause: USERRA creates a “for cause” termination standard for employees who return to work after one month or more of military service.  If an employee’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be terminated without cause for up to six (6) months following his or her return to work.  And employees returning from more than one-hundred and eighty (180) days of service are afforded this protection from termination for a full year.  This is most relevant to states like Georgia where employees are terminable “at will” meaning that no cause for termination is required.

Note that in addition to USERRA, veterans may be protected under other employment statutes. For instance, an injury sustained during a military tour might make that individual a person with a disability and entitled to protections under the ADA. 

Happy Memorial Day!

Quick Tips: Wrongful Termination

July 21, 2017

Due to the at-will employment doctrine in GA, an employer can fire an employee or independent contractor who is not hired on a fixed term contract for any reason (or for no reason) and without notice provided that the termination is as a result of discrimination on protected grounds or retaliation for exercising legislatively protected rights.

At-Will Employee Cried “Breach of Contract”

March 20, 2017

The United States District Court for the Northern District of Georgia released a decision on March 20, 2017 declaring: “even an at-will employee can, under certain circumstances (when the employer makes an oral promise to pay), recover under a breach of contract theory”.

In Georgia, employees are hired “at-will” meaning that they can be terminated or fired without cause and without notice. At-will employees are protected from termination only when they are being terminated for reasons that are prohibited under other laws (such as that which would contravene Title VII of the Civil Rights Act or the Georgia Whistleblowers Act, etc.).

In Jamie Anthony et al v. Concrete Supply Company, the Plaintiffs were employed by CSC to haul sand, rocks, gravel and dirt to its customers. The Plaintiffs alleged that the employer breached their contract when contrary to representations made in pay stubs and the company handbook which promised that they would be paid 27% of the revenue generated from each haul, the employer in fact paid them 27% of a lesser amount, among other claims. The employer moved to dismiss the complaint for several reasons including the allegation that at-will employees are not entitled to the breach of contract cause of action in the absence of a written employment agreement.

The Court disagreed with the employer, ultimately denying its motion to dismiss the complaint. In part, the Court based its reasoning on the following tenets of employment law in Georgia:

“the employment relationship is contractual in nature, whether the contract is express or implied, oral or written.”

“courts are rightly loathe to find […] that no contract existed between the employer and employee.”

“nothing about the contractual nature of the employment relationship transforms it into anything other than an at-will relationship terminable at will by either party.”

“even an at-will employee can, under certain circumstances (when the employer makes an oral promise to pay), recover under a breach of contract theory.”

The significance of this decision is rooted in the conclusion that not only independent contractors have access to the breach of contract claim, rather, even at-will employees, who seemingly in Georgia employment law are of all men most miserable, do in fact have access to this claim.