Can Hospital Workers Be Fired for Refusing to Vaccinate?

The first batch of COVID-19 vaccinations are already being administered to healthcare workers in hospitals and long-term-care facilities who are most at risk. But what happens if employees refuse to be vaccinated? Can they be terminated for refusal? Professor Dorit Reiss of UC Hastings Law explains employers' rights to mandate vaccination as a condition of employment, the legal and ethical concerns surrounding such mandates, and the exceptions under the Americans with Disabilities Act and the Civil Rights Act of 1964.


Dorit Reiss is Professor of Law and the James Edgar Hervey '50 Chair of Litigation at UC Hastings College of the Law.

Can Hospital Workers Be Fired for Refusing to Vaccinate? Brief Transcript

Interview with Vaccine Law Expert, Professor Dorit Reiss

Joel Cohen (Host): Hello and welcome to TalksOnLaw, I'm Joel Cohen. Today we're talking about the COVID-19 vaccine and the laws around it. We're getting the update from Professor Dorit Reiss of UC Hastings. Professor, welcome to TalksOnLaw.


Prof. Dorit Reiss (DR): Thank you for having me again. 


Fired for Refusal to Vaccinate

Host: We've seen that one of the first priorities in receiving the vaccine are medical workers or first responders. We've also seen examples where doctors or nurses have chosen not to take the vaccine. Is there an obligation, can doctors or hospital workers be fired for refusing to take the vaccine? 


DR: First of all, I would say that if you're working with vulnerable populations there's probably an ethical obligation to protect them and your co-workers as much as possible from COVID -19 including by taking the vaccine. Legally, employers can mandate that health care workers take the vaccine. It's been done in other contexts such as influenza.


Exceptions and Exemptions Requiring Accommodation 

There are four caveats: first these vaccines are authorized under an emergency use authorization not under a regular license and there's some legal uncertainty whether you can mandate a vaccine under an EUA. Right now, the Equal Employment Opportunity Commission has issued a guidance that suggests that yes you can mandate a vaccine under EUA and my reading of the statute is that it's there's a good chance that you can, but there's enough ambiguity that it can be tested in court and I think there's a 50-50 chance which way the court will go. So one caveat is Emergency Use Authorization. Second, if it's a unionized workforce, the collective bargaining agreement may require negotiating with the union before requiring vaccines.


Host:  Interesting, so it may be that you would have to negotiate with say the airline workers union if you wanted to require that pilots and and stewards / stewardesses take the vaccine? 

DR: Exactly right.  And the third caveat is the American with Disabilities Act which says that if someone has a disability, which will include the contraindication against the vaccine, they should be given reasonable accommodation unless it's a significant burden. Reasonable accommodation doesn't necessarily mean treating them like everyone else. It can mean requiring them to wear PPE, having them work isolated from other people who could take the vaccine. If there's a choice between remote work and on-campus work, they might be required to do the remote part but they have to be accommodated unless it's a really significant burden on the employer. Finally the Civil Rights Act of 1964 says that employers can't discriminate against employees with sincere religious objections to a workplace rule unless it's a undue burden. In this case, an undue burden means no more than minimal costs. So there may be claims of religious objection to the vaccine by some employees and you may have to accommodate them. Again, not necessarily to let them work like everybody else but to give them some accommodation. 


Host: So may be if you had a religious objection or a disability justification you could be entitled to work from home or perhaps wear the right type of mask? 


DR: Exactly but otherwise, yes, employers can impose a vaccine requirement. It's a health and safety rule. Those are allowed in the workplace, and they can fire people who don't comply with it. I'm not sure it's a good idea this early this early – we have such a shortage that if workers don't want the vaccine in most circumstances it's probably better to just give it to someone who does want it, but there are exceptions.  So imagine a long-term care facility with very elderly, very vulnerable patients where 30% of the workforce doesn't want the vaccine – it may be justified to require it from those people working with a vulnerable population.