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State courts across the country have upheld employers’ mandatory vaccination policies. Those decisions are winding their way toward the Supreme Court, which will likely have to weigh in on the enforceability of the Occupational Safety and Health Administration’s (“OSHA”) emergency temporary rules on employment workplace safety.  Most of the employer cases involved termination of employees for the employee’s failure to adhere to the policy.[1]  Why?  Employers are said to be on safer legal footing terminating employees for violating mandatory vaccination policies than imposing lesser punishments, like withholding pay, withholding pay raises, making only vaccinated workers eligible to apply for internal positions or promoting only vaccinated employees.

Most employers do not want to be the test case for that type of litigation.  Again, why?  The argument is that the employer’s at the same time allowing unvaccinated employees in the workplace but imposing some other punitive sanction (other than work from home – “WFH”) does not keep the workplace safe, reduce the risk of COVID transmission in the workplace, or increase employee health and safety.  It undermines the employer’s COVID policy.

And, making compensation or promotion decisions on COVID policy adherence could lead to pay equity claims (for instance, California has a pay equity law that requires anyone working in the same job category to receive equitably similar compensation).  There could also be some sort of protected class or protected activity claim.  Employer compensation decisions should be based on the employee’s documented job performance (one might argue adhering to company policies could be included in that analysis though).  Compensation and promotions ought to be based on employee skills, experience, performance of job duties and performance bringing value to the company, instead of extraneous matters.  If the employee cannot perform job duties, like cannot travel because of not being vaccinated, and this issue is a documented hindrance to the employer, then the employer likely would be justified in taking action.

And if an employer is going to take swift action for violation of its COVID policy, the policy should be in writing, distributed and acknowledged by each employee to confirm receipt, and allow employees time to get vaccinated.  Those COVID policies often include incentives (money, time off, etc.) for employee adherence to the COVID vaccination policy requirements.  And in the age of the “Great Resignation,” where finding and retaining employees is weighing on employers, incentives may be the key to retaining employees and keeping company morale up, instead of terminating employees.

Here at Epps & Coulson, LLP we regularly deal with these types of employee issues.  Feel free to contact Dawn:

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

Attorneys admitted to practice in
California, New York, Colorado, Texas, and Oregon


[1] Employers must also consider exemption from mandatory vaccination for employees with a medical condition or sincerely held religious belief (all which we have discussed in prior updates).