A CLOSER LOOK: termination versus vaccination; a choice some employees face

A Closer Look

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ARKANSAS (KNWA/KFTA) — Some companies are requiring employees to get a vaccination against COVID-19 or they could face termination.

In Arkansas, the two ways an employee can get out of getting a mandatory COVID-19 vaccination, and possibly not be terminated, would be to file for a religious or medical exemption.

There are two legal exemptions in Arkansas for not getting vaccinated — religious or medical.

In Arkansas, both Walmart and Tyson announced mandated COVID-19 vaccinations and employees have until a certain date to comply. These are two of the biggest companies nationally employing an approximate combined total of more than 1.5 million people in the U.S.

“We have made this decision to require all market, regional and divisional associates who work in multiple facilities and all campus office associates to be vaccinated by October 4, unless they have an approved exception,” Walmart President and CEO Doug McMillon said. “This includes all new hires.”

Tyson Foods is requiring its team members at U.S. office locations to be fully vaccinated by October 1, 2021. All other team members are required to be fully vaccinated by November 1, 2021, pending discussions with locations represented by unions. 

“Getting vaccinated against COVID-19 is the single most effective thing we can do to protect our team members, their families, and their communities,” said Tyson Foods Chief Medical Officer Dr. Claudia Coplein.

Companies can require the vaccination under Arkansas Act 977 of 2021.

“The state, a state agency or entity, a political subdivision of the state, or a state or local official are prohibited from mandating COVID-19 vaccines. However, Act 977 allows state-owned or state-controlled medical facilities to offer incentives to employees to receive a COVID-19 vaccine,” explained attorney Missy Duke with Cross, Gunter, Witherspoon & Galchus. The law firm, based in Little Rock, specializes in the areas of labor and employment law. “Additionally, Act 977 states that if a state-owned or state-controlled medical facility wants to require that its employees be vaccinated, the facility must receive approval from the Legislative Council to implement such a vaccine mandate.”

Certain public employers may require that their employees obtain vaccines, providing it’s in compliance with Act 977.

In most states, employees would likely not be allowed to collect unemployment should they get terminated for not getting vaccinated by the required date because that would violate a company policy. Should that happen, the employee can file a lawsuit.

“Anyone can sue for anything, but if an employer has properly complied with relevant legal authority such as Title VII and the Americans with Disabilities Act, then the employees would not likely prevail,” said Duke. “If an individual cannot be vaccinated due to a disability or requests a religious exemption, the covered employer must determine its responsibility to accommodate the unvaccinated employee.”

American with Disabilities Act (ADA):  requires covered employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee or applicant with a disability, unless the covered employer can demonstrate that the accommodation would impose an undue hardship on its business. For example, the covered employer may consider whether it can reasonably institute physical distancing and/or mask-wearing or personal protective equipment (PPE) requirements that reduce the risk of COVID-19 transmission while allowing the employee to physically return or remain at work. If the risk cannot be reduced to an acceptable level, the covered employer may exclude the employee from the workplace but should still consider if it can accommodate the employee by, for instance, allowing the employee to work remotely or take leave authorized by federal or state law or the employer’s policies. Covered employers should engage in a flexible, interactive process to identify reasonable accommodation options that do not constitute an undue hardship on the employer.

Under Title VII: covered employers must provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents him or her from receiving the vaccination unless doing so would present an undue hardship. In the context of Title VII, an “undue hardship”—which is a lower standard than the ADA’s undue burden standard—requires an employer to show that the proposed accommodation would cause more than a de minimis cost or burden on the operations of the employer’s business. While examples of potential religious accommodations are generally similar to ADA accommodations, accommodations under the distinct laws should be assessed independently due to Title VII’s less stringent standard. Generally, covered employers should assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief because the definition of “religion” is broad and protects beliefs, practices, and observances with which the employer may not be familiar. If, however, an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, it may request additional supporting information from the employee.

In Arkansas, the Division of Workforce Services does not advise individuals before they resign as to whether they have grounds to voluntarily quit and receive unemployment benefits.

“It is a fact-intensive determination that is made only after a claim has been filed and all the relevant information is provided,” said DWS Communications Director Zoë Calkins.

There are two relevant laws that are considered in reviewing claims on whether a person would receive unemployment benefits when they stop working due to a vaccine requirement:

  • A.C.A. 11-10-513:  On a quit (claimant-initiated separation) good cause would have to be shown by the claimant for quitting.  The claimant would need to provide medical documentation that the claimant is unable to get a vaccine for a legitimate medical reason, and what steps were taken by the employee to address the issue before quitting (whether the claimant requested accommodation or change of job duties; requested a transfer; requested leave; spoke to supervisor/management/HR about the situation before quitting).
  • A.C.A. 11-10-514: On a discharge, eligibility is determined by whether the claimant was discharged due to misconduct.  In this instance, if the employer has a policy requiring employees to be vaccinated, and the claimant refuses to be vaccinated, this is considered a violation of the employer’s policy and would constitute misconduct.  Exceptions are refusal for legitimate religious or medical reasons.

Below is a recent order in a federal lawsuit in Texas that addresses wrongful termination claims.

https://www.documentcloud.org/documents/20860669-houston-methodist-lawsuit-order-of-dismissal

Delta variant continues to spread with another SARS-CoV-2 waiting in the wings, doctors warn.

The Delta variant of SARS-CoV-2 has spread quicker than any previous variant, and another is on the way. Last week, Dr. Rochelle Walensky Director of the Centers for Disease Control (CDC) said, “the next mutation could date the current vaccines.”

The CDC reports that variants have been circulating globally throughout the pandemic “that viruses constantly change through mutation.” The US Department of Health and Human Services (HHS) established an “interagency group” that has classified the variants into three groups of COVID-19 (SARS-CoV-2): Variant of Interest, Variant of Concern, and Variant of High Consequence.

As of Tuesday, August 3, no “Variants of High Consequence” have been found in the U.S.

U.S. “Variants of Concern”

  • B.1.1.7 (Alpha 2.9%). First identified in the United Kingdom.
  • B.1.351 (Beta 0%). First identified in South Africa.
  • B.1.617.2 (Delta 83.4%). First identified in India. This variant has lineages: AY.3 (9.1%), AY.2 (.8%), AY.1 (.1%).
  • P.1 (Gamma 1.3%). First identified in Japan/Brazil.

The CDC reported the Delta variant represents 93% in all U.S. locations. The states of Arkansas, Alabama, Louisiana, Mississippi, Missouri, Texas, and Florida represent more than one-half of new COVID-19 cases as of Thursday, August 5.

U.S. VACCINATION RATE

In Arkansas, nearly 2.5 million total doses have been administered. CDC data as of 8.5.2021.

On Wednesday, August 4, White House Press Secretary Jen Psaki gave credit to Arkansas Governor Asa Hutchinson (R) during the daily press briefing about his effort to address the community about getting vaccinated.

“The President said yesterday, the vast majority of leaders — and as I’ve said too — continue to step up and do the right thing.  People like Governor Hutchinson have been traveling their state, hearing from their communities, and answering questions about the vaccine.”

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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