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Get vaccine or be fired? Federal agency affirms companies can force employees to get vaccinated

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The federal government says businesses can mandate that employees get vaccinated against COVID-19 to enter their workplace, and offer incentives for receiving the vaccine.

Meanwhile, legal experts affirmed that being fired for refusing the vaccine is generally legal.

What are the details?

The Equal Employment Opportunity Commission released updated guidance Friday explaining that vaccine mandates do not generally violate equal employment regulations.

"The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below," the agency said. "These principles apply if an employee gets the vaccine in the community or from the employer."

The EEOC also affirmed companies who offer incentives for employees who get vaccinated, although the agency cautioned against "substantial" incentives.

Yes, if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. ...however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

According to Politico, businesses had been pressuring the EEOC to "clarify whether employers could offer paid time off or even cash to encourage vaccination."

"[E]mployers including Dollar General, Aldi and Instacart have already moved to reward their employees for receiving the COVID-19 vaccine by offering paid time off and cash stipends," Politico reported.

Can you be fired for refusing the vaccine?

As the vaccine became available to all American adults this spring, employers began requiring vaccination — and employees who refused the vaccine began to be terminated, which have resulted in lawsuits.

But legal experts say that firing employees for refusing a vaccine given Emergency Use Authorization by the Food and Drug Administration is probably legal, especially considering most states have "at-will" employment laws.

"I am not aware of any court or agency at the state or federal level that has held that the Emergency Use Authorization language prohibits an employer from enforcing a vaccine mandate," attorney Erik Eisenmann told Bloomberg News.

Nicholas Bagley, a law professor at the University of Michigan, agrees. "It's a condition on future employment. And institutions can do all sorts of things as a condition of employment," he said.

Addressing the EUA argument, Bagley told Bloomberg, "The argument looks good for about a half-second, and then, as soon as you start digging, it starts to look much, much worse."

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