COVID-19 vaccine mandates in the workplace; are they legal?

Lawyers weigh in on employment questions for those weary about the shot
covid vaccine
Posted at 7:49 PM, Sep 28, 2021
and last updated 2021-09-28 22:14:43-04

GRAND RAPIDS, Mich — President Biden wants to mandate COVID-19 vaccines for employers with more than 100 workers, but it’s still not a federal law.

Regardless, the issue is bringing up a lot of legal questions for businesses and their employees.

“It has really been an interesting time,” said Stephanie Setterington with Varnum.

She represents employers and has practiced law nearly 25 years.

But what’s happened in the last 18 months, is new for everyone.

“We’re all trailblazing,” Setterington said. “We’re all trying to figure this stuff out on the fly, and we’re looking toward - when it comes to vaccination requirements, there have been other vaccines in the past and some employers would require employees to get like a flu shot.”

That’s why they have to look to the past and see how those rules apply now.

Under the president’s proposed mandate, federal employees and contractors would be required to get the vaccine. So would health care workers at facilities that get government funding.

There’s no testing option for that group, meaning those people will need to get the shot.

But roughly 80 million other workers would be able to choose whether to show proof of a COVID vaccine or get tested for every week.

“A lot of things depend on the circumstances,” said attorney Sarah Howard with Pinsky, Smith, Fayette and Kennedy.

She represents employees and has heard from people who don’t want to get the shot, and those who only want to be in a fully vaccinated workplace.

“So, when somebody is making a claim of a medical or disability accommodation,” Howard said, “they would go to their employer and say, ‘I have this medical condition – it makes it extra dangerous for me to work in an unvaccinated workplace, I think I can continue to do my job at home, will you allow that?’ Then the employer has an obligation engage in a dialogue with the employee figure out if that’s a thing they can accommodate.”

Others will flat out refuse the shot and may be terminated. While they might threaten a lawsuit there’s not much legal ground to stand on.

“Michigan is an at-will employment state,” Setterington said, “but if what the employer was doing was somehow discriminating on the basis of a protected class or if an employee had an employment contract that was being breached by the termination, then there could be a cause of action. But simply being let go because you wouldn’t comply with a vaccine mandate is not typically gonna be grounds for a lawsuit.”

If you are let go, unemployment may be an option.

Michigan’s Unemployment Insurance Agency told Fox 17 it all depends on the circumstances.

Qualifying for benefits is evaluated on a case-by-case basis. A review will be conducted of the employer’s policies, work rules, why the vaccine is required, and the claimant’s reason for refusing it.

If an employer has a written policy and you disobey, that could disqualify you from benefits – but not always.

“An employer might have a policy, but an employee might have a compelling reason personally why they couldn’t comply with that policy,” Setterington said. “We don’t know yet how the unemployment agency is going to apply its rules in determining whether that’s misconduct.”

Some employers want to mandate the vaccine and they have deadlines for workers to comply.

Others want to leave the decision up to the employee.

A new territory for all involved and one that’s still being tweaked.

“It’s really impossible to say as a generalization whether or not someone’s treatment at work is illegal without talking to them,” said Howard.

Everyone’s situation is different, so if you have legal questions, it’s best to contact an attorney. ​

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