Here’s an interesting story we ran across. A former Netflix executive has filed suit against the media company, claiming her termination was in retaliation for complaining about religious and sexual discrimination rather than her refusal to get the COVID-19 vaccine.
In her California lawsuit, the employee claims Netflix violated workplace gender bias, retaliation and harassment laws by mocking the religious beliefs of the unvaccinated and promoting a sexually charged culture. The employee claims when she spoke up, the company used her unvaccinated status as a pretext to fire her.
A former VP, she was the first woman to hold a manager position on its original series production team. She claims the company maintained a “flirtatious” office environment and encouraged employees to meet one-on-one to promote its core values. The employee describes the meetings as an opportunity for male employees to flirt and hug female employees.
She has also cited several off-site employee events where alcohol was present. In 2017, the employee’s director was fired for inappropriately touching a woman at one of those social events. The employee also claims when she became pregnant, her supervisor moved her responsibilities for the shows she had been working on. After filing a complaint, the supervisor was reprimanded, and she regained her duties.
During the COVID-19 pandemic, Netflix had to identify vaccinated and non-vaccinated workers, setting up “red zones” that excluded unvaccinated workers. In response to this system, workers bullied colleagues who chose to remain unvaccinated for religious reasons. Netflix soon implemented a mandatory COVID-19 vaccine policy with a deadline of December 31, 2020.
The employee said that because of her autoimmune condition, her doctor recommended that she not receive the vaccine, so she promptly sought an exemption. Netflix denied her exemption and her request to work remotely, ultimately firing her in January 2021.
The employee now claims Netflix fired her for refusing to be vaccinated, her complaints about company culture, and her pregnancy and ensuing maternity leave.
Which begs the question, can a company fire you for refusing a vaccine? In general, in the U.S. a private company can legally fire an employee for refusing the COVID-19 vaccine, with exceptions required for legitimate medical disabilities or sincerely held religious beliefs. It should be noted state and local laws vary, with some states explicitly banning employer mandates.
A Few Considerations:
- Most U.S. employees are “at-will,” meaning an employer can terminate them for any reason not prohibited by law, including non-compliance with a health and safety rules.
- The Equal Employment Opportunity Commission (EEOC) guidance indicates that federal anti-discrimination laws do not prevent employers from requiring COVID-19 vaccinations, provided they follow proper accommodation procedures.
- Employers must provide reasonable accommodations for employees who refuse vaccination due to:
- A disability or medical condition under the Americans with Disabilities Act (ADA) that makes vaccination unsafe;
- A sincerely held religious belief, practice, or observance under Title VII of the Civil Rights Act of 1964;
- Personal or ethical objections generally do not qualify for these exemptions.
The Accommodation Process
If an employee requests an exemption, the employer must engage in an “interactive process” to determine if a reasonable accommodation can be provided without causing “undue hardship” to the business. Examples may include:
- Wearing a face mask;
- Social distancing;
- Modifying a work shift;
- Working remotely.
If no reasonable accommodation is possible without undue hardship, an employer may be able to exclude the employee from the physical workplace.
State and Local Laws
Some states have passed legislation that limits or prohibits private employers from mandating the COVID-19 vaccine. For example, Texas law generally prohibits private employers from taking adverse action against employees for refusing the COVID-19 vaccine, with specific exceptions for certain healthcare facilities.
Please note, because laws can conflict and are complex, employees facing this situation should consult with an employment attorney or check their specific state’s workforce commission guidance for information relevant to their location.