Mandatory employee vaccinations are not a new topic in the area of employment law. Over the years, through employees’ challenges to mandatory flu vaccines, a body of law emerged addressing whether an employer can terminate an employee for refusing to vaccinate.
As a general rule, an employer can terminate employees for refusing to vaccinate. The two exceptions to that rule are: (1) disability and (2) religion. In those circumstances where an employee rejects the mandatory vaccine on one of these grounds, the employer must go through an interactive process to determine if the employee’s religion or disability can be reasonably accommodated, i.e., if there are alternatives to the vaccine that will allow the employee to perform his job without violating his religious practices or despite his disability. The employer, however, does not have to give an accommodation if it creates an “undue hardship” for the business.
In January 2020 – just before the pandemic officially started in the United States – the Fifth Circuit Court of Appeals dealt with this exact issue in a case involving a termination of a firefighter by a City fire department in Texas for his refusal to get the mandatory tetanus, diphtheria, and pertussis or whooping cough (TDAP) vaccine on the grounds of his religion. The Court ruled in favor of the employer, providing a good reminder of how employers should go about addressing these types of situations.
In Horwath v. City of Leander, a driver/pump operator in the city’s fire department, and an ordained Baptist minister, objected to obtaining a department-mandated TDAP vaccine on religious grounds. He was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing. He did not accept either accommodation and was fired for insubordination. The employee then sued for discrimination and retaliation under Tittle VII and its Texas equivalent and for violation of his First Amendment rights to exercise his religious beliefs.
The district court ruled in favor of the employer and dismissed the employee’s claim on summary judgment and the Fifth Circuit Court of Appeals affirmed that decision. The key factor in the Court’s ruling was that the City offered the employee two reasonable accommodations for his religious beliefs – to wear a respirator at work, keep a log of his temperature, and submit to additional medical testing, or to transfer to another position that did not require vaccination but had the same salary and benefits. While a lot of times, whether an accommodation is “reasonable” is a question of fact for the jury to decide, in this case, the Court ruled that “the facts here ‘point so strongly and overwhelmingly in favor of [the City] that reasonable [jurors] could not arrive at a contrary verdict.’”
The Court noted that under Title VII, once an employer makes an offer of a reasonable accommodation, an employee has a duty to cooperate even if the offered accommodation is not that employee’s preferred one. In other words, an employee does not get to dictate which accommodation he or she prefers.
What constitutes a “reasonable” accommodation for a COVID-19 vaccine will vary for each employer-employee situation based on the industry, the employee’s duties, the employee’s working environment and other factors. In this case, the Court found that requiring an unvaccinated employee to wear a respirator, check his temperature and submit to additional medical testing was “reasonable.” However, other types of accommodations could have also been sufficient. Importantly, the choice between multiple reasonable accommodations belongs to the employer.
TAKEAWAY FOR EMPLOYERS: Employers handling employees’ requests to be exempt from a mandatory COVID-19 vaccine on religious grounds should treat such requests very carefully. As demonstrated by the City of Leander case, employees terminated for their refusal to obtain a COVID-19 mandatory vaccine, can sue for discrimination on the basis of religion and / or retaliation.
What constitutes “religion” for purposes of Title VII is a much more complicated question than most employers realize. Some courts, for example, found that veganism was a religion requiring an accommodation for protein-based vaccines. Furthermore, whether certain accommodations are “reasonable” depends on the existing guidance from EEOC and the case law in the employer’s jurisdiction.
To avoid getting in a protracted litigation, unless employers have a lot of experience dealing with accommodation requests, they should consult with a qualified legal counsel as soon as they receive a request, or what may sound as a request, for an exemption from COVID-19 vaccine from an employee. This is definitely an area where, in the words of Benjamin Franklin, “an ounce of prevention is worth a pound of cure.”
Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. Her practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.