Best Employment Lawyers Answers: Can I be fired for refusing to get vaccinated? Did the United States Supreme Court tell employers that they cannot require me to vaccinated? What should I do if I was fired today because I won’t get the COVID-19 vaccination?
Unfortunately, when it comes to the COVID pandemic, there is a lot of problems arising out of many Americans just reading the headlines and not reading the article. And the latest issue is arising with the news this week that the United States Supreme Court reinstituted the temporary stay of the Vaccination and Testing Emergency Temporary Standard (“Vaccination and Testing ETS”) mandate by the Occupational Safety and Health Administration, more commonly known as OSHA.
Let’s start with the basics, the Vaccination and Testing ETS was a requirement issued by OSHA that required employers with more than 100 to in turn require those employees to get the COVID vaccination and implement required testing protocols as a condition of employment. Essentially, under the Vaccination and Testing ETS employers were required to pass these work rules and fire any employee that did not comply (with certain exceptions).
The Fifth Circuit Court of Appeals thought that his Vaccination and Testing ETS was likely to be found unlawful and stay the implementation of the ETS, but the Sixth Circuit Court of Appeals (which cover Ohio) disagreed and lifted the stay. This conflict pushed the case in front of the United States Supreme Court. Since the decision by the high court, I’ve talked to many people, some very educated, that are simply confused by what has happened, and many other who just outright have it wrong. So, let’s answer some basic questions.
Is this a definitive answer on the legality of the Vaccination and Testing ETS?
Technically, no. The stay ordered the Fifth District Court of Appeals was a temporary stay until more hearings can be held to determine the legality of the COVID Vaccination and Testing ETS. While some may read the Fifth District Court of Appeals’ stay order to be a signal of how it may rule, the case will be consolidated before the Sixth District Court of Appeals, which had vacated the stay order. That being said, the United States Supreme Court’s 6-3 opinion on the issue (which can be read here) was very expansive and very clearly demonstrated its disfavor of the Vaccination and Testing ETS. So, the Sixth District Court of Appeals will likely take this opinion into consideration and follow suit … or it might not. However, either way it will likely end up back with the Supremes, who will likely reach the same conclusion. So, as Miracle Max said in the Princess Bride, it’s mostly dead.
So, Is OSHA blocked from doing anything?
Remember, mostly dead does not mean all dead. Because the United States Supreme Court decision focused on the fact that the Vaccination and Testing ETS was too broad, think hammer instead of a scalpel, the top court just limited this ETS but did not prohibit all efforts to slow the spread of COVID and make workplace safer. Instead, it specifically held that the agency could take targeted measures (think scalpel): “Where the virus poses a special danger because of the particular features of an employee’s job or workplace,” such as “researchers who work with the COVID-19 virus” or “risks associated with working in particularly crowded or cramped environments.” This opens the door for OSHA pull out and use the General Duty clause to address COVID-19, particularly workplaces identified by the United States Supreme Court. Indeed, because the ETS was temporary by definition, it had to be replaced by a permanent standard six months after it was issued. As such, The ETS simply could have been OSHA testing the waters to see how far it could legally go. Now, armed with the guidance from the United States Supreme Court, OSHA can tailor a permanent standard that will likely pass scrutiny.
And the most common question that we get: “So, does this mean that my employer cannot require me to get vaccinated?”
The United States Supreme Court only addresses what OSHA can require employers to do. The decision in no way, shape, or form changes the rights of employers to exercise its right to independently mandate that its employees get vaccinated. Employers are still allowed to require vaccination and other COVID protocols (See COVID Law: Can My Job Make Me Wear A Mask At Work?). Of course, this is subject to exceptions based on disability requirements and very limited religious exemptions. Individuals who chose not to get vaccinated because they believe that the vaccination is harmful, dangerous, or unnecessary have no protections for their jobs. If you have any doubt about how our employment law firm views this law, we require our employees to be vaccinated; we have a mask policy; and have required COVID testing. We stand behind and fight for employees who have been fired for complaining about COVID violations or are fired for quarantining when positive. (See Can I Be Fired For Reporting COVID Violations?)
At Spitz, The Employee’s Law Firm, our employment lawyers are standing by to take on your Coronavirus related employment claims, including if you are searching “I need a lawyer because I have been wrongfully fired or terminated;” “I have been discriminated against or harassed based on my disability or diagnosis”; or “I was fired for asking about Family Medical Leave Act (FMLA) during the COVID-19 pandemic.” In these uncertain times, if even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Toledo and Cincinnati to get help now. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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