Chris Wiest, Attorney at Law, PLLC: CLIENT ALERT: Employer Vaccine Mandates

Chris Wiest, Attorney at Law, PLLC
25 Town Center Blvd, STE 104

Crestview Hills, KY 41017
(513)257-1895 (cellular)
chris@cwiestlaw.com
*admitted in Kentucky and Ohio
August 4, 2021
CLIENT ALERT: Employer Vaccine Mandates
With an increasing incidence of employers in Kentucky mandating vaccination for

COVID-19, we have received an increasing number of inquiries about the legality of such
mandates. This guidance sets forth the legal issues surrounding such mandates. At the outset,
certain of this advice is specific to COVID-19 vaccines, rather than all vaccine mandates. And
this general alert is not meant to replace case and fact specific guidance for your specific
situation.
The COVID-19 Vaccines are emergency use authorization approved only, and, while the
emergency use statute does not give rise to a cause of action, a Kentucky public policy
claim likely currently exists against employers that mandate, and then discharge
employees for refusal to obtain a COVID-19 vaccine.
At present, all COVID-19 vaccines are approved for emergency use authorization only.
That statute is contained at 21 U.S. Code § 360bbb–3. Approval is conditioned, however, on
individuals who are subject to receiving the vaccine having “the option to accept or refuse
administration of the product,” and being informed “of the consequences, if any, of refusing
administration of the product, and of the alternatives to the product that are available and of their
benefits and risks.” 21 U.S. Code § 360bbb–3(e)(1)(A)(ii). But federal law makes the
enforcement of this provision limited to only the federal government, or state attorney general.
21 U.S. Code § 337. So a private right of action is not available under the statute itself.
Kentucky is generally an at-will employment state, which means that, generally speaking,
an employer can fire an employee for any reason or no reason at all. Firestone Textile Co. Div.
v. Meadows, 666 S.W.2d 730, 731 (Ky. 1984).
However, Kentucky recognizes a discharge in violation of public policy claim. That

requires the employee to show: (1) the discharge is contrary and well-defined public policy as
evidenced by existing law; and (2) the policy in question is evidenced by a constitutional or
statutory provision. Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky. 1985). Grzyb also recognized
that a discharge of an employee was not permitted for an employee exercising a “right conferred
by a well-established legislative enactment,” and doing so would be actionable.
The federal statute, which requires consent and the option to refuse, is undermined by an
employer mandate. And, given that, it appears that both kinds of wrongful termination claims
under Gryzb would be viable.
We are interested in representing employees who are discharged for refusal to obtain the
COVID-19 vaccine, while it is still under emergency use authorization. However, all available
information appears to be that the FDA is fast tracking full approval of the vaccine, and we are
likely only weeks away from full approval for the Moderna and Pfizer vaccines. At that point,
the claims above would cease to be viable.
Federal and state law do provide some limited protections for religious objections and
medical exemptions.
Federal law applies to employees affecting commerce, which are those that have 15 or
more employees. 42 USC 2000e(b). That same statute protects religion, which is extended to
“all aspects of religious observance and practice, as well as belief, unless an employer
demonstrates that he is unable to reasonably accommodate to an employee’s or prospective
employee’s religious observance or practice without undue hardship on the conduct of the
employer’s business.” 42 USC 2000e(j). 42 USC 2000e-2(a) makes it unlawful for an employer
to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.”
The Americans with Disabilities Act is likely also at play for medical exemptions. A
disability is defined as being “a physical or mental impairment that substantially limits one or
more major life activities of such individual.” 42 USC 12102(1)(A). Like other provisions of
federal law, there is a 15-employee limit – so small employers are not subject to the ADA. 42
USC 12111(5). An employer may not discriminate on the basis of a disability. 42 USC 12112.
Generally speaking, a medical providers note is required to invoke this exception.
In both the ADA and under Title VII for religious exemptions, it is critical to invoke
these rights early in the process, and to document them appropriately. It is also important to note
that an employer is generally required to provide a reasonable accommodation, which may not
be a blanket exemption without “strings,” and could be things like telework if it is available, or
may include COVID-19 testing or even mask mandates (unless those are also covered by a
religious or medical objection to their usage which would trigger the same balancing analysis).
A large corporation may be required to afford greater accommodations than a small one, which is
less able to do so. And questions will arise about the disruption that any accommodation will
cause to the employer.
Again, obtaining legal advice early is important.
State law can, but currently does not, provide additional measures.
Legislative efforts to provide employee protections failed to pass in the 2021 Kentucky
General Assembly. But there are bills that are being proposed to afford greater protections in the
2022 session. Whether there is support for any such measures likely to pass remains to be seen.
If you have further questions about this alert, please email us at: chris@cwiestlaw.com

Chris Wiest, Attorney at Law, PLLC: CLIENT ALERT: Employer Vaccine Mandates

Uploaded by

Copyright:

Available Formats

Chris Wiest, Attorney at Law, PLLC: CLIENT ALERT: Employer Vaccine Mandates

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Chris Wiest, Attorney at Law, PLLC: CLIENT ALERT: Employer Vaccine Mandates

Uploaded by

Copyright:

Available Formats

Chris Wiest, Attorney at Law, PLLC

25 Town Center Blvd, STE 104

CLIENT ALERT: Employer Vaccine Mandates

With an increasing incidence of employers in Kentucky mandating vaccination for

However, Kentucky recognizes a discharge in violation of public policy claim. That

Generally speaking, a medical providers note is required to invoke this exception.

Again, obtaining legal advice early is important.

You might also like