Employers navigating this return have adopted a wide range of policies, from requiring masks for non-vaccinated employees to requiring most employees to get vaccinated. Are these policies legal?
Yes, with very few exceptions.
First, remember that Mississippi is an “at will” employment state. That means an employee can quit his or her job for any reason or no reason at all. Likewise, an employer can fire an employee for any reason (as long as it would not violate discrimination laws covering protected classes) or no reason at all.
This means that employers have a very wide scope in setting the rules that employees must follow. After all, it’s their business. And if an employee doesn’t like the employer’s policies (like a mask or vaccine policy), they can quit the job if they so choose.
Some employees mistakenly believe that the Health Insurance Portability and Accountability Act (HIPAA) prevents their employer from asking about their vaccine status. HIPAA prevents certain covered entities which have sensitive patient health information from sharing it with others without the patient’s consent. It does not prevent employers – or anyone else for that matter – from asking anyone about their health information.
Some of this confusion may stem from the Americans with Disabilities Act (ADA), which prevents employers from asking job candidates if they have a disability before making a job offer and requires employers to maintain the confidentiality of any employee medical information obtained after hiring. But nothing in the ADA prevents an employer from asking employees about their vaccine status during a pandemic or requiring vaccinations for employees.
The ADA does require employers to make reasonable accommodations for employees who cannot get vaccinated due to a disability or sincerely held religious belief. However, such an accommodation is not required if it would pose an undue hardship on the operation of the employer’s business.
Another source of confusion seems to be a section of the Federal Food, Drug, and Cosmetic Act which prevents the government from mandating vaccines that have only received an emergency use authorization from the FDA. But that law does not prevent private employers from requiring their employees to receive such vaccines as a condition of employment.
The best advice for employees is to ignore any claims they see on social media regarding their employer’s rights or responsibilities. If an employer adopts policies that concern you, talk to them about your concerns. If a compromise cannot be reached, and if the issue is important enough to you, then it’s ultimately up to you to decide if you want to continue your employment relationship. It’s a free country after all.