DON’T DO THIS: Threaten to fire employees that get a COVID-19 vaccination

Today’s edition of “DON’T DO THIS” comes from an unlikely source: The Howard Stern Show.

Yesterday afternoon, while catching the replay of The Howard Stern Show in the pick-up line at my kids’ school (#responsibleparenting), I heard them discussing a private school in Florida that — get this — emailed parents not only discouraging employees from getting the COVID-19 vaccine but also sharing its new policy not to employ anyone who gets vaccinated for COVID-19. It had something to do with vaccine shedding, which sounded like more made-up nonsense.

So, I did a little Googling and, sure enough, here’s what I found:

• Patricia Mazzei of The New York Times reports here that the school gave its employees three options: (1) Inform the school if they had already been vaccinated so that they could be kept physically distanced from students; (2) Let the school know if they get the vaccine before the end of the school year, “as we cannot allow recently vaccinated people to be near our students until more information is known”; (3) Wait until the school year is over to get vaccinated.
• CBS4 Miami (here) quoting from a letter that the school sent to parents: “Until further notice, we ask any employee who has not yet taken the experimental COVID-19 injection, to wait until the end of the school year. We also recommended that all faculty and staff hold off on taking the injection until there is further research available on whether this experimental drug is impacting unvaccinated individuals. It is our policy, to the extent possible, not to employ anyone who has taken the experimental COVID-19 injection until further information is known.”
• Another CBS4 Miami report (here) about a fifth-grade math and ***checks notes*** science teacher who told her students that the COVID-19 vaccine was dangerous. She also warned the kids that if their parents have been vaccinated, they should not hug them for more than five seconds.

Yesterday, I read a small business study from the National Federation of Independent Business published here in Law360. It shows that just over 9 in 10 businesses will either encourage vaccinations or say nothing to their employees about it. Conversely, only 3% will require vaccinations. 

Do you know how many responded that they would actively deter COVID-19 vaccinations or fire employees who get the needle? 0.0%

The CDC (among others) recommends COVID-19 vaccinations for adults. And while some may choose to ignore this guidance, forcing workers to avoid vaccinations could create legal problems (in addition to a PR nightmare).

Consider the Americans with Disabilities Act. Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship.

Imagine an individual with a disabling co-morbidity. That person may need the COVID-19 vaccine to safely come to work to perform certain essential job functions in the office.

Additionally, the ADA protects people who are regarded as having a substantially limiting impairment. If an employer regards as disabled an employee who is vaccinated for COVID-19 and then fires that person because they received the vaccine, that could be an ADA violation too.

Bottom line: Do not threaten to fire employees that get a COVID-19 vaccination.