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Whistleblower risks when requiring COVID vaccines for employees

10 minute read

REUTERS/Carlos Osorio

June 9, 2021 - While the COVID-19 vaccine roll-out caused a collective sigh of relief, it also brought to head a concern that began to bubble up once Operation Warp Speed was announced: How would employers respond to the vaccine, mandate or not?

Numerous questions surfaced. Is it legally permissibly to mandate the vaccine? If so, should it be mandated? If mandated, how would the morale of an employer's workforce react to the decision? If an employer does mandate the vaccine, what happens if an employee complains about the mandate or refuses to comply? Is an employer able to take adverse action against the employee? Is the employer on solid legal ground regarding that employment decision, or could it have unwittingly exposed itself to liability?

Private employers may require employees get vaccinated prior to returning to a place of work to minimize the risk of COVID-19 outbreaks in the workplace.1 But that does not mean employers simply can administer blanket mandatory vaccination policies without regard for federal, state, or local employment laws.

Indeed, mandatory vaccination programs implicate federal equal opportunity employment ("EEO") statutes, the Occupational Safety and Health Act ("OSH Act"), and the National Labor Relations Act ("NLRA"), to name a few.

A vaccine mandate can also trigger claims under corresponding state and local laws, including those that protect rights involving free speech, political affiliation, privacy, and the filing of workers' compensation claims.

If an employer chooses to require the COVID-19 vaccination as a condition of employment, it is virtually inevitable that some employees will protest or request exemptions.

However, to swiftly terminate such individuals or automatically exclude them from the workplace increases the odds that they will turn to federal or state agencies to challenge the employment decision, often alleging that they were subject to unlawful discrimination and/or retaliation.

This article provides an overview of the legally protected activity employees may engage in to oppose or be excused from a vaccine mandate, as well as steps employers should take to comply with applicable law and reduce exposure. It also outlines the claims and remedies available to employees who successfully show that an employer's vaccine mandate violated the law.

On May 28, 2021, the Equal Employment Opportunity Commission ("EEOC") issued updated guidance expressly stating that the federal EEO laws do not prevent employers from mandating COVID-19 vaccines for all employees physically entering the workplace.

While permissible, a mandate cannot be universally enforced as to all employees. Employers must abide by the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"), which means that employers may need to excuse employees from the vaccination requirement in certain circumstances.

As the EEOC's guidance instructs, "[a]n employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer's business."2

And those who choose not to be vaccinated because of pregnancy are entitled to exemptions to the extent accommodations have been made for other workers.3

In addition, about half of U.S. states have proposed legislation that would outlaw discrimination based on a worker's vaccination status, which could pose further barriers to instituting a vaccine mandate.

Employers must undertake a fact-intensive analysis when they seek to require a vaccine for individuals who state they cannot comply due to a covered disability. First, the vaccine mandate must be job-related and consistent with business necessity.4

Second, the unvaccinated employee must pose a "direct threat" to the health or safety of the employee or others in the workplace.5 To draw that conclusion, the employer must assess the individual's ability to safely perform the essential functions of the job without vaccination.6

After concluding there would be a direct threat, the employer still cannot require compliance if the risk can be eliminated or reduced by a providing an accommodation that would not pose an undue hardship.7

What would an accommodation for an employee who cannot or will not get vaccinated look like?

The EEOC describes several possible accommodations: an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a staggered shift, get periodic tests for COVID-19, be given the opportunity to telework if feasible, or accept a reassignment to a vacant position in a different workspace.8

Changes to the work environment, such as improving ventilation systems or limiting contact with other employees and non-employees, may also be considered.9

An employer might decide that allowing an unvaccinated individual to work on site poses too significant a risk of harm to the health and safety of the employee or others, particularly in hospital settings where employees serve vulnerable populations.

However, automatically terminating workers who ask for an exemption — or excluding them from the worksite without an individualized analysis — increases the odds that they will complain of discrimination and retaliation to the EEOC and its state counterparts.

The EEOC cautions that employees with disabilities need not use the phrase "reasonable accommodation" in order to trigger ADA protections.10

As a recommended practice, employers should notify all employees that they will consider requests for reasonable accommodation based on disability (including pregnancy) or religion on an individualized basis.11 They should also provide training so managers anticipate and understand how to respond to requests for exemptions to the mandate.

For instance, it is permissible to ask employees if they have been vaccinated or request proof of vaccination, but not to ask follow-up questions, like why an employee is not vaccinated.12 Nor can employers disclose to others that an employee is receiving a reasonable accommodation.13

To prepare to defend the decision regarding whether to grant an exemption from the vaccine mandate, the interactive process and communications with employees should be well-documented.

Other EEO claims will proliferate if employees perceive their employers to be selectively enforcing their vaccine requirements.

It is illegal for a vaccine mandate to have a disparate impact on — or disproportionately exclude — employees based on their race, color, religion, sex (including pregnancy, sexual orientation and gender identity), or national origin under Title VII, or age under the Age Discrimination in Employment Act.14

Not only can an employer run afoul of the law by failing to provide exemptions to a vaccine mandate or by asking too much information, but by punishing those who protest the vaccine requirement.

Retaliation claims arise when an individual who engaged in protected activity is later subject to an adverse employment action, such as a demotion, denial of overtime or promotion, reduction in pay or hours, or layoff or termination.

Protected activity includes the more obvious "participation" claims, which are brought by individuals that claim retaliation for filing complaints, or for testifying, assisting or participating in any manner in an investigation, proceeding or hearing.

But protected activity also includes opposition to a practice that an employee believes in good faith to be unlawful, irrespective of whether the practice ultimately is determined to be such.

This is problematic precisely because it is vague and can include the simple act of informing or complaining to an employer that the employee believes that the employer is engaging in a prohibited action.

Generally, this type of employee claim can result in government audits, investigations and single plaintiff or class action lawsuits.

If an employer takes an adverse action against an employee for requesting an exemption from a vaccine mandate due to a religious belief or a covered disability, a retaliation claim under Title VII or the ADA is sure to follow.

Even employees who do not occupy a protected EEO category may secure protection under anti-retaliation provisions of an EEO statute, however. For instance, a worker can complain that the employer took more punitive action against certain categories of unvaccinated employees than others.

As long as employees have a good-faith belief that the EEO laws were violated, they may have a plausible claim of retaliation should they later face an adverse employment action.15

Under Title VII and the ADA, courts may issue temporary or injunctive relief, such as a restraining order, against the employer if the challenged action is likely to constitute unlawful retaliation, and the individual plaintiff (or the EEOC) is likely to suffer irreparable harm because of the retaliation. Both compensatory and punitive damages are available under Title VII and the ADA, subject to a statutory limit.16

Workers may also attain protected status under Section 11(c) of the OSH Act for reporting concerns about health and safety hazards relative to COVID-19. The OSH Act requires employers to furnish each worker "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm."17

Workers with concerns about the potential side effects of a COVID-19 vaccine could claim that the employer is exposing them to a known health and safety hazard by mandating the vaccine.

When the Occupational Safety and Health Administration ("OSHA") negotiates to settle a claim, its policy is to seek to "make the victim whole," that is, to recover everything a worker lost because of the retaliation, including all wages, benefits, seniority, and leave time (plus interest). OSHA can seek punitive damages up to three times above and beyond lost wages and benefits.

Employers should be mindful of taking adverse actions against employees for voicing opposition to a vaccine mandate, whether at the workplace or off duty, or on social media. Legal claims may also arise from a backlash associated with the "anti-vaccine movement" or concerns about the safety of a COVID-19 vaccine.

Even in a non-union environment, employees against a vaccine mandate may file unfair labor practice charges if they perceive retaliation for their efforts to mobilize co-workers around an issue that affects the terms and conditions of their employment.

The National Labor Relations Board ("NLRB") could interpret their conduct as "protected concerted activity" for the purpose of "mutual aid or protection" under Section 7 of the NLRA.18

Although the NLRB cannot impose traditional penalties or punitive damages, it has significant remedial authority to provide "whole relief" to the charging party (the employee or union). In other words, upon finding that an employer committed an unfair labor practice, the NLRB will order the employer to cease and desist from the unfair labor practice and to take affirmative action to remedy the violation.19

The most common remedies are reinstatement, back pay and interest. In disciplinary cases, an employee's file may be expunged of records of the wrongful discipline or termination.

In other cases, the NLRB may order the employer to post a notice for a period of time (normally 60 days) disclosing that it had been found guilty of an unfair labor practice and reminding employees of their rights under the NLRA, or impose an injunction requiring the employer to maintain conditions at the workplace.

It is commonplace for employees to monitor — and voice their opinions about — their employers' policies relating to COVID-19, including whether vaccination is mandatory.

Employees should never be disciplined or terminated because they request a reasonable accommodation relating to a policy or raise concerns about potential violations of EEO statutes or health and safety laws or procedures, including when the protected activity relates to the employer's response to COVID-19.

If independent reasons justify disciplinary action against an employee who recently raised such concerns, the employer should ensure the reasons are properly documented, consistent with the company's policies and procedures, and that other employees who have engaged in similar conduct — but who have not complained — received the same disciplinary action.

In this environment where retaliation claims related to health and safety complaints are on the rise, employers need to ensure consistent enforcement of their anti-retaliation and whistleblowing policies and procedures. This includes reviewing and updating policies and procedures that prohibit retaliation and scheduling additional training time to help reinforce anti-retaliation rules.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Hinna Upal, an associate in the firm’s Rochester office, provides practical solutions and strategic guidance to multinational employers on a wide range of international employment and compliance concerns and in litigation. She can be reached at hupal@littler.com.

Jennifer M. Duke, an associate in the firm’s Boston office, defends clients before federal and state courts, agencies, and arbitrators in a range of employment law disputes. She can be reached at jduke@littler.com.

Jacqueline Phipps Polito, managing shareholder for Littler Mendelson’s office in Rochester, New York, is a trial attorney with experience in all aspects of labor and employment litigation. She can be reached at jpolito@littler.com.

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