Ask the Labor Lawyer #8 - The Vaccine and Severance

10/13/2021

Question:  My employer has given me a deadline to get the vaccine or be terminated.  If they fire me, am I entitled to severance?  What is a standard severance amount?

Response:  For most employees, there is no automatic severance.  Severance must be negotiated.  Some executives have the star power to negotiate a severance package up-front, before they even begin work.  The rest of us have to negotiate severance on the back end.

I am being laid off - what should I expect?

In a layoff situation, it is customary – but not legally required – for employers to offer severance pay.  The amount of pay will sometimes vary based on the length of service.  For example, the formula might be one week of pay for every year of work, with a minimum of 2-4 weeks.  This accomplishes several purposes:

  • The company expresses its appreciation.
  • The employee receives transition help.
  • The process remains as amicable as possible under the circumstances.

Of course, the true purpose of severance is to obtain an agreement not to sue, also called a general release.  People are sometimes foolish and do stupid things in the workplace.  When employees are terminated, it is not hard for them to dredge up a complaint, especially if they consult an attorney.  It’s even easier if they live in a blue state with lots of employment laws.  (Employers, have you considered moving your business to Idaho?)

Fired for being Unvaccinated

Back to your specific question.  You are not in a layoff situation, but you do have some leverage for negotiation.  Vaccine mandates are controversial, and we are seeing lots of lawsuits challenging them, especially where employers have denied religious and medical exemptions.  Of course, we do not know how the courts will rule every time. Some judges have been receptive to the claims of pro-vaccine-choice employees, and some have not.  The Supreme Court may or may not decide to weigh in.

Yet, win or lose, lawsuits are time-consuming and expensive.  Smart employers don’t want protracted legal battles.  They would rather focus on making money.  Severance agreements can be good for the bottom line and provide peace of mind.

Perhaps you are prepared to litigate your employer’s vaccine mandate.  If so, I encourage you to count the costs, and then Godspeed!  But for most employees, it makes sense to ask your employer for severance.  The exact amount will depend on how guilty your employer feels, and/or how much tolerance they have for legal risk.  But 4-6 weeks could be a reasonable target, and a real help as you look for your next job.

May you negotiate in strength and leave in peace,

Laura, The Labor Lawyer

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