Federal vs. state
Montana is the only state in the U.S. that does not have "at-will" employment.
Following a probationary period (during which employees can be fired for any reason), employees have to be fired "with cause." The case in Montana is legally complex and still being argued, and bills are being introduced to clarify what employers can and cannot do to mitigate COVID-related threats.
It should be noted that "at-will" employment is not the only reason employers are able to fire employees for not getting a vaccination.
Even without at-will employment, employers may be able to argue that vaccination is a bona fide requirement of the job. This is particularly true in public-facing, client-facing positions, such as working at the customer service counter.
Can employees get unemployment benefits if they are terminated?
Unemployment benefits are complex and often decided on a case-by-case basis.
First, employees are not able to get unemployment benefits if they walk off the job rather than being vaccinated; they would need actually to be fired to qualify for unemployment benefits in the first place.
Second, the termination would need to be seen as being "without cause." In the case of vaccination, this is unlikely.
In at least one employment case, unemployment benefits were refused because a refusal to get vaccination was seen as failing to fulfill the requirements of the job.
Some unemployment offices may see vaccination refusal as constructively quitting; it is the employee deciding they don't want to work rather than the employer. It is the same as simply refusing to come in until an employer fires you.
In general, an employee who is fired because they refuse to be vaccinated is not eligible for unemployment benefits, but because COVID-19 is so unprecedented, this may change in the future, and there are still conversations being held about the issue.
Employees may have a legitimate, medical exemption for vaccination. As an example, employees who are going through chemotherapy may be advised not to get the vaccine.
Employees who have had negative reactions to vaccinations in the past or who are prone to blood clots will also be medically discouraged from getting the vaccine. These employees may be able to get a medical letter that exempts them from vaccination — and it would be discriminatory to fire them for not being vaccinated.
Another issue that may arise is religious discrimination. To constitute religious discrimination, however, it would need to be shown that the individual has genuine and longstanding religious beliefs that discourage them from being vaccinated.
Very few established and legally recognized religions have proscriptions against vaccinations. In the past, religious leaders largely have been against vaccination because the vaccines contained pork products — the COVID-19 vaccination does not have any animal products in it.
Human resource departments should be thorough in their documentation regarding exemption requests and consider whether their denial of these exemption requests could constitute discriminatory behavior.
Vaccines, employee rights
HR departments will need to consult their own guidelines carefully to determine whether they want to enforce COVID-19 vaccination and what the consequences might be for doing so.
Legalities, health and public optics are all something that companies will need to consider today when making COVID-19-related decisions.
As the COVID-19 situation is so unprecedented, HR departments also should remain abreast of any new developments. There are multiple movements throughout many states (such as Texas), to create laws and regulations around vaccination requirements.
Mike Cioffi is founder of Tire Talent, a boutique recruiting agency dedicated to the tire industry. His columns in Tire Business focus on current HR and talent topics that may impact your business or team.