The COVID-19 vaccine has been particularly divisive. Employers want their workers vaccinated. Some workers are refusing. As more employers move away from incentives to encourage vaccination in favor of terminating unvaccinated workers, the labor disputes are escalating.
VACCINE MANDATES SPARK FIRINGS AND LAWSUITS
Claims Journal says that thousands of unvaccinated Canadian employers are being fired or put on unpaid leave as the government focuses on vaccine mandates. In response, lawyers who specialize in labor are being flooded with calls.
In the U.S., new rules will require employers with at least 100 employees to ensure that workers are either fully vaccinated or tested weekly. The new requirements are set to go into effect by January 4, 2022. Claims Journal says it’s not clear how OSHA will enforce the new rule, but there could be a penalty of around $14,000 per violation. SHRM says that more employers are already firing unvaccinated workers.
Just like in Canada, these firings may result in legal challenges. In one example, Business Insurance says that nearly half of the 10,000 employees at two aircraft companies remain unvaccinated in Wichita, Kansas, and the union district has already hired a lawyer to help employees prepare potential lawsuits if their requests for medical and religious exemptions are denied.
The Fisher Phillips COVID-19 Employment Litigation Tracker shows that there have been 3,962 cases as of November 8, 2021, and 108 of these lawsuits involve claims of wrongful discharge.
COURT RULINGS SO FAR
The legal dispute over COVID vaccines is new, and that means it’s still developing. However, early court rulings can provide an idea of how claims may develop.
According to Reuters, a U.S. federal judge has ruled in favor of United Airlines. The ruling allows the company to enforce a policy that requires vaccination and only provides unpaid leave to workers who have medical or religious exemptions. In Canada, CBC says that a judge rejected a request from healthcare workers to postpone a vaccine requirement in Quebec.
In contrast, CBS 4 News says that a judge has ruled against the City of Gainesville over its vaccine mandate. The judge granted an emergency injunction and ruled that the city could not enforce the mandate, which would have gone into effect on October 30.
NAVIGATING THE CLAIMS TO COME
As more mandates go into effect and more workers are terminated, it’s highly likely that we will continue to see more legal challenges. When creating vaccine policies, it’s important to consider the potential for a claim. Employers should keep an eye on governmental regulations, health agency recommendations and court rulings, as the situation may change rapidly.
For employers in the U.S., the EEOC has information on how the ADA, Title VII and GINA may impact vaccine mandates and exemptions. In Canada, the Ontario Human Rights Commission has information on vaccine requirements.
