On November 3, 2021, news broke that one of the NFL’s most recognizable names, Aaron Rodgers, had tested positive for COVID-19 and, under the league’s protocol, he would not be able to play in his team’s upcoming game. This story puzzled some NFL fans because, before the season started, the press had asked the star quarterback whether he had received the vaccine. In response, Rodgers nodded his head and told reporters, “Yeah, I’ve been immunized.” Rodgers had not, in fact, been vaccinated. While he had perhaps been more forthcoming to his team’s ownership than he had been to the press, this incident raises the question of what an employer should do with an employee who is not truthful about vaccination status.
First, an employer is permitted to know an employee’s vaccination status. There is nothing legally improper about that inquiry. Second, earlier this month, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), generally requiring businesses with 100 or more employees to implement a mandatory vaccination policy that incudes maintaining proof of employees’ vaccination status. Thus, for many employers, they may already have, or will start to have, evidence of vaccination status on file for their employees.
Also, most employers have policies regarding truth and honesty, particularly with respect to documents and information submitted to the company. If an employer doesn’t have such a policy, it should adopt one as soon as possible. If an employer learns that an employee has been dishonest in its dealings with the company, that alone is often grounds for termination.
The only complexity comes from if an employee asks for a medical or religious accommodation upon being confronted with the dishonesty. An employer does not have to excuse a violation of conduct rules that are job-related and consistent with business necessity, even if that violation is related to an accommodation request. For that reason, documenting a discipline or termination decision and when it was made (after discovering the dishonesty but before the employee requested the accommodation) can be important.
Of course, the employer need not impose such a harsh penalty. It is unlikely, for example, that the Green Bay Packers will terminate Aaron Rodgers – he is the quintessential “key” employee for the organization. Employers should bear in mind, however, that if they do not terminate one employee for such dishonesty regarding their vaccination status, it may make it more difficult to justify future terminations on similar grounds for other employees.
NOTE: On Wednesday, The NFL fined the Green Bay Packers organization $300,000 for its part in not properly enforcing safety protocols, including permitting Rodgers to attend practice and team meetings maskless. The NFL also warned that future violations could result in more severe punishment, including lowered or lost draft picks. Meanwhile, the NFL also fined Aaron Rodgers and Packers wide receiver Allan Lazard $15,000 each for breaking league protocols by going to a Halloween party, despite being unvaccinated.
More thought leadership about vaccine “mandates” and the OSHA ETS
LEGAL ADVISORY: OSHA Releases COVID-19 Vaccine Rules but U.S. 5th Circuit Blocks Them
Employment Law Associate Frank George breaks down the OSHA ETS for private employers and the resulting legal challenges that have lead to an injunction blocking implementation and enforcement since OSHA announced the new rules
Ann-Marie Ahern & Jack Moran Discuss President Biden’s Vaccine Mandate
Jack Moran an Ann-Marie Ahern made an appearance on The More Report, Podcast Edition, to discuss President Biden’s “vaccine mandate.” Listen to Jack and Ann-Marie discuss the legal challenges that the administration is likely to face if implement this policy.
