With the development of COVID-19 vaccines, the solution to the pandemic that has plagued the world for the past year might be here. Scientists say the U.S. will need about 70% of the population to get vaccinated to reach the herd immunity threshold that would effectively put an end to the COVID-19 pandemic.
Someone can imagine businesses like restaurants or medical offices using a “all of our employees have been vaccinated against COVID-19” advertisement as a way to assure customers and help the business. However creates a potential problem because some people are reluctant to get vaccinated. A recent ABC News/Ipsos new poll found that 8 in 10 Americans say they would receive the vaccine, with 40% saying they would take it as soon as it was available to them and 44% saying they would wait a bit before getting it.
Can I Get Fired for Refusing the COVID-19 Vaccine?
If you think your employer already has too much control over your life, I have bad news. With some exceptions under the law, an employer can force an employee to get vaccinated, and if they refuse to be vaccinated the employer can fire them. That is because in “employment at will” states like Massachusetts, employees can be fired for a good reason, a bad reason, or no reason at all. In theory, if you are an “at will” employee you could be fired for any reason, so long as that reason is not illegal such as discrimination or retaliation.
In the 1905 case of Jacobson v Massachusetts, 197 U.S. 11, 22, 25 S. Ct. 358, 359 (1905)., Jacobson refused to get a compulsory smallpox vaccination in Cambridge, MA pursuant to a Cambridge city ordinance. Jacobson claimed to have suffered serious medical complications from vaccinations in the past. At trial, Jacobson challenged the Cambridge mandatory vaccination program on the basis that it was an unreasonable invasion of his rights under the 14th Amendment. The Massachusetts Supreme Court disagreed and held that the vaccination program was constitutional. The United States Supreme Court agreed ruling that the vaccination program had a real and substantial relation to the protection of the public health and safety. U.S. Supreme Court Justice Harlan wrote that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” He further stated: There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.
Justice Harlan also explained that “real liberty for all” could not exist where each individual person's right to use his own liberty could be allowed regardless of the injury that may be done to others. The Supreme Court held that an individual's liberty rights under the U.S. Constitution are not absolute, and the mandatory smallpox vaccination law was necessary to promote the interest of public health and safety.
This 115-year-old case is still the law when it comes to mandatory vaccination. In fact, State and local governments in the United States have relied on Jacobson when requiring mandatory immunizations as a prerequisite for attending public schools.
What are the Exceptions for Refusing the COVID-19 Vaccine as Condition of Employment?
As with every vaccination requirement, there are exceptions for those who have a medical disability under the Americans with Disabilities Act that leaves them unable to receive the vaccine. Title VII of the Civil Rights Act of 1964 provided a possible exception for those who have a sincerely held religious belief against vaccines. In both of the above instances, the burden of proof lies with the employee.
If an employee wants an exemption, the employee must make their employer aware of those concerns and likely provide some form of proof. The employer, then, is required to attempt reasonable accommodation to continue that person's employment.
Whether your employer requires a mandatory vaccination in your workplace might be an employer-by-employer question. A restaurant or nursing home might require vaccination, while a white-collar workforce with allot of remote workers might decide a mandate is not necessary.