Earlier this month, the Baltimore Symphony (BSO) fired principal flutist Emily Skala from a job she had held for more than 30 years. The BSO didn't publicly state the reason for her dismissal except to say it was for repeated "conduct for which she had been previously disciplined.”

According to the New York Times, Skala claimed she was being attacked for making social media posts that questioned whether vaccines and masks were effective in preventing COVID-19. BSO had earlier in the year issued a statement that BSO did not support her views.

According to the Baltimore Sun, Skala accused BSO of “violating [her] Constitutional rights" and "committing crimes against [her]." The Baltimore Sun reported that Skala believes the incident that triggered her dismissal was going to BSO offices to turn in an employment form without wearing a mask and without having a negative COVID-19 test, both of which are apparently required by BSO.

Skala’s comments resemble those of many employees whose employers require COVID-19 vaccination. Employees may view COVID-19 vaccination or test or mask requirements to be an unlawful change in employment conditions. Or they may believe that requiring vaccination or masks violates their Constitutional rights.

This article discusses whether employers can require COVID-19 vaccinations or tests or require that employees wear masks. I’m not a scientist or physician, so this article doesn’t discuss whether vaccinations or masks prevent COVID-19. Also, nothing in the article should be viewed as taking a position on any social or political issue. The only purpose of this article is to discuss the current state of the law.

Employees’ Rights Generally

Skala likely is a union member, and she may have a grievance or other rights under the union contract. However, unless employees are subject to a collective bargaining agreement or an employment contract, they are probably “at-will” employees. Employment “at-will” means that an employer can end the employee’s employment at any time, without notice, and for any reason or even for no reason.

However, even if someone is an “at-will” employee, the employer still is subject to employment discrimination laws. Under federal law, an employer can’t terminate an employee because of their sex, race, color, religion, national origin, disability, age (if over 40), sexual orientation, gender identity, genetic information, or because they are pregnant, which are “protected classes.” States and local governments may have additional protected classes.

Also, employers aren't permitted to fire employees in retaliation for engaging in certain lawful “protected activities.” For instance, an employer can't fire an employee because they file an employment discrimination or worker's compensation claim or make a report protected by whistleblower statutes. Employees also can’t be filed for engaging in lawful union or collective bargaining activities.

Finally, employers aren’t permitted to harass employees or allow other employees to harass employees based upon their protected class or protected activities.

Can an Employer Require COVID-19 Vaccination?

An employer can require employees to receive a COVID-19 vaccination. The federal Equal Employment Opportunity Commission (EEOC) states that “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with . . . EEO considerations.”

The EEOC has said that employers may have to provide reasonable accommodations to a vaccination requirement for employees with a disability that prevents vaccination or have a sincerely held religious belief, practice, or observance that prohibits vaccination. The EEOC also cautions employers about policies that have a disparate impact on individuals in a protected class, such as unequal access to vaccinations.

Examples of reasonable accommodations include allowing remote work, requiring masks, social distancing, modified shifts, regular COVID-19 testing, or change in job assignments. Employers need not provide an accommodation if it would pose an undue hardship on the operation of the employer's business. For example, remote work, modified shifts, or social distancing might not be possible for a line cook in a small restaurant kitchen. But in that instance, requiring a mask or regular COVID-19 testing might not pose an undue hardship.

The EEOC didn't answer whether an employer can require a COVID-19 vaccination for remote employees. Employers may claim they can require the COVID-19 vaccination for all employees regardless of their work location since the employer is interested in reducing employee absences for illness. However, I think it’s likely that an employer wouldn’t be permitted to require the COVID-19 vaccination for an employee who has zero physical contact with others on behalf of the employer.

What Are Sincerely Held Religious Beliefs?

Some employees may not want to get a COVID-19 vaccine because of their beliefs. They may believe that vaccines are unnecessary or even harmful or that those promoting vaccination are doing so to promote political objectives. Or, they may think they're healthy and not at risk for serious COVID-19 infection, so they don't need to be vaccinated.

Some religions forbid vaccination. Employees who adhere to those religions will be entitled to reasonable accommodation. Although the EEOC doesn’t require that an employee’s beliefs come from a “mainstream religion,” the beliefs must be “lawful observances and practices that are based on . . . sincerely held beliefs.” An employee who has received other vaccinations but objects only to the COVID-19 vaccination or who recently has adopted a new religion may have difficulty qualifying for the religious exemption.

According to the EEOC, if an employee's beliefs aren't based on religion, they don't exempt employees from employer vaccination requirements, no matter how sincere the employee is in their beliefs. The EEOC takes the position that “mere personal preferences are not protected. Also, social, political, and economic philosophies aren't covered by the laws enforced by EEOC."

What Must an Employee Provide for the Disability Exception?

An employee must inform their employer if they can't receive a COVID-19 vaccination due to a disability. Although the employee need not communicate in writing, it’s advisable that they do so.

Not all medical conditions will be disabilities. A person has a disability if they have a mental or physical condition that substantially limits one or more major life activity(ies). Major life activities include seeing, hearing, talking, walking, learning, or major bodily functions.

If the employee's disability or its relationship to the COVID-19 vaccination isn't apparent, the employer can ask for reasonable documentation about the disability and how it limits vaccination. An employer may request a physician's report on the nature of the disability, the major life activities affected, and how the disability affects the employee's ability to receive the COVID-19 vaccination. Even if an employee is disabled, that disability won’t exempt the employee from COVID-19 vaccination if the disability doesn’t prevent vaccination or make vaccination medically inadvisable.

Do Employees Have a Constitutional Right to Refuse Vaccination?

Most employees have no Constitutional rights in the workplace. That’s because the Constitution only applies to actions by the government. A law or government order that violates someone’s right to free speech might be unconstitutional.

But the Constitution doesn’t apply to private employers. So, for most employees, the only way they can avoid an employer’s vaccination requirement is if they qualify for a reasonable accommodation under EEO laws.

Why Isn’t a Vaccination Requirement Prohibited as a Change in Employment Conditions?

Some employees believe that their employer can’t add a COVID-19 vaccination requirement after they start work. They think that the terms of their employment are set when they begin work and can't be changed without mutual agreement. That’s not the case.

Most employees are “at-will” employees. Unless an employee is part of a collective bargaining unit and has a collective bargaining contract or has a personal employment contract, they should assume they are “at-will.”

“At-will” employees have no real job security. The employer can change the terms of employment or end their employment at any time. That means their employer can change their employment conditions by adding a COVID-19 vaccination requirement. And the employer can fire the employees who refuse to get vaccinated.

Can An Employee Get Unemployment If They Are Fired for Refusing the COVID-19 Vaccination?

If an employee refuses to comply with their employer's COVID-19 vaccination requirement, it is like any other refusal to abide by an employer's policies. Even if the employee believes the employer’s policies are unreasonable, refusal to comply with the employer’s policies usually is considered misconduct. And the employer can fire employees for this misconduct.

Employees fired for misconduct aren’t usually eligible for unemployment benefits. Each state will interpret misconduct differently.

In Maryland, discharges from employment due to misconduct fall into three categories: simple misconduct, gross misconduct, and aggravated misconduct. Employees fired for gross misconduct or aggravated misconduct have to become re-employed and earn a certain amount of money before becoming eligible for unemployment benefits. Employees terminated for simple misconduct only have unemployment benefits denied from 10 to 15 weeks from the week that includes their last workday.

It’s unclear whether refusing the COVID-19 vaccination would be simple misconduct or a higher level of misconduct, and that determination might depend upon the employee’s job function. But regardless of the category of misconduct, employees who refuse to comply with an employer's COVID-19 vaccination are at risk of losing their jobs and not receiving unemployment benefits.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.