June 04, 2021 Dispute Resolution Magazine

Calling the Shots

Conflict resolution techniques can help in the workplace

Benjamin E. Widener

On February 22 of this year, the United States recorded its 500,000th death related to COVID-19, a staggering and sobering number that seemed unfathomable only one year ago. Although the death rate is slowing, the number of cases is still rising and new variants are posing big challenges. But there is reason for hope. As of late spring, the federal Food and Drug Administration had approved and authorized three vaccines for emergency use, and millions of doses were being administered daily across the country.

Businesses, as we have seen, have suffered great losses during the pandemic, and many have closed their doors forever. Those that remain are facing new and important questions: as they look to reopen, can and should they mandate vaccination for their employees? If they require their employees to be inoculated, how might that affect the workplace, what does the process look like for their employees, and who may seek accommodations? How will employers manage and resolve disputes that arise out of their vaccine policies?

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal antidiscrimination laws and advancing equal opportunity in the workplace, issued new guidance concerning the right of employers to legally mandate COVID-19 vaccinations for their employees. According to the EEOC, the short answer is “yes”: employers may legally mandate that their employees be vaccinated, subject to certain qualifications and considerations. At issue is the legal question of whether a company can seek information about its employees through a “medical examination”, something that is unlawful under the Americans with Disabilities Act of 1990 (ADA) unless such examination or inquiry is shown to be “job-related and consistent with business necessity.” The EEOC unequivocally declared that “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” This position would seem to give private employers the green light to implement COVID-19 vaccine policies and require employees to be vaccinated as a condition for continued employment or, at the very least, as a condition for returning to the physical workplace.

However, as we all know, just because you can do something does not mean you should do it. Despite the EEOC’s validation of an employer vaccination mandate, excluding certain industries (such as healthcare) where employer-required vaccines and immunizations have generally been approved and upheld, many employers are still wondering whether to implement a mandatory vaccination policy. Because each employer’s situation and circumstances are unique, there is no “one-size-fits-all” approach, and most employers recognize this issue is filled with landmines, fraught with legal, practical, and diplomatic pitfalls, challenges, and concerns. For example, if an employer decides to require COVID-19 vaccinations of its employees, that employer must reasonably accommodate employees who either cannot (or will not) be vaccinated for medical reasons under the ADA or because of sincerely held religious reasons under Title VII of the Civil Rights Act of 1964. A request for an accommodation or exemption from vaccination requires a dialogue between the employer and employee, which itself can be complicated and can expose the employer to liability for violations of applicable law. A unionized or partially unionized workforce can pose additional challenges; because a mandatory vaccination policy is a term of employment, implementing such a policy probably will require collective bargaining. Other, less tangible concerns include employee buy-in and morale. How will workers react if they must be vaccinated before they can return to their jobs? Will those who willingly get the shots be concerned about coworkers who say no, thanks? What’s required to guarantee a workplace that’s safe for everyone?

Whether an employer should require its employees to get vaccinated against the novel coronavirus is, simply put, complicated. Indeed, because of the factual and legal nuance of these workplace situations and because various forms of negotiation are required by law, these situations are ripe for vigorous use of a wide range of conflict resolution approaches and tools.   

Legal background

Before the EEOC issued its guidance in December, the prevailing wisdom was that employers could require employee vaccines only if they were job-related and consistent with business necessity or justified by a direct threat – and even then, the vaccination mandate could not be more broad or more intrusive than necessary. This is why, historically, only employers in the healthcare industry who met this standard have mandated vaccinations and immunizations for their workforces.

Even so, an employer considering a mandatory vaccine policy must begin by complying with Title VII and the ADA. To avoid potentially significant liability, an employer must provide the appropriate carve-outs for covered employees. These considerations are discussed below.

Employee exemption from vaccination under Title VII

Under Title VII, an employee must have a “sincerely held religious belief” against vaccination before his or her employer is required to provide an exemption from being vaccinated. A sincerely held but nonreligious opposition to a vaccination is legally insufficient; to qualify for an exemption, an employee must demonstrate that his or her objection to vaccination is based on a legitimate genuine religious belief.

In the 2020 Third Circuit decision of Brown v. Children’s Hosp. of Phila., the Court of Appeals affirmed the dismissal of a hospital employee’s discrimination claim after she was fired for not agreeing to get a flu vaccine, in violation of the hospital’s flu-vaccine policy. While the court acknowledged the employee’s “holistic health lifestyle” and her own personal belief that the vaccine might do more harm than good, the court found that the employee’s opposition to the vaccine was not based upon a sincerely held religious belief. “It is not sufficient merely to hold a ‘sincere opposition to vaccination,’ ” the court held. “[T]he individual must show that the ‘opposition to vaccination is a religious belief.’ ”

Some courts, however, have liberally construed “sincerely held religious belief, practice, or observance” to include unorthodox beliefs. For example, in US Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., a coal miner who was a lifelong evangelical Christian and ordained minister objected to his employer’s implementation of a biometric hand-scanner system at the mine, which he feared could brand him with the “Mark of the Beast” which, under his understanding of the Book of Revelation, could lead to his identification with the Antichrist.  That the employee’s belief was sincere was not disputed by his employer. The US Court of Appeals for the Fourth Circuit affirmed the decision of the trial court and held that the employee’s religious belief was a sincerely held religious belief and thus entitled to legal protection under Title VII.

To trigger Title VII’s protections, an employee must advise his or her employer that a sincere religious belief conflicts with a job requirement, such as a mandatory vaccination policy. The employer is then obligated to make reasonable accommodations for the employee’s religious beliefs and practices – unless doing so would result in undue hardship to the employer. In this context, the EEOC defines undue hardship as “more than a minimal burden on [the] operation of the business,” creating a relatively low bar for the employer. Still, violations of Title VII may subject an employer to significant damages, including back pay along with compensatory and punitive damages. To avoid being charged with employment discrimination and being forced to defend a lawsuit, employers can – and should – avail themselves of dispute resolution processes, from engaging in the interactive dialogue mandated by Title VII to establishing more formal conflict resolution policies or engaging in pre-litigation mediation with their employees.

Employee exemption from vaccination under the ADA

Another basis for accommodating an employee’s request to avoid vaccination falls under the ADA, which protects employees from disability discrimination. An employee could have a medical condition or disability that prevents him or her from receiving the COVID-19 vaccine. The ADA places restrictions on an employer’s ability to exclude an individual with a disability from the workplace without first providing “reasonable accommodations,” and the employer must offer these accommodations unless they would place an “undue hardship” on the employer or the employee poses a “direct threat” to the health and safety of others.

To trigger the ADA’s protections, an employee must notify the employer of his or her disability and request a workplace accommodation, such as an exception to a vaccination policy.  In response, the employer must engage in an “interactive dialogue” with its employee about the accommodation request. This communication and exchange of ideas is, at its core, a negotiation.  In furtherance of this negotiation process, employers should consider meeting with the employee (and, where appropriate, the employee’s representatives) to explore a mutually agreeable accommodation sufficient to allow the employee to continue working in his or her current capacity. Potential accommodations could include options such as allowing the employee to work from home (if this is feasible and essential job functions can still be performed), requiring a mask in the workplace, or adjusting the employee’s duties to minimize risk of transmission (again, with the understanding that nothing obligates an employer to change or remove an employee’s essential job functions as a legal accommodation).

In Ruggiero v. Mount Nittany Med. Ctr., the Third Circuit held that an employee’s ADA discrimination claim was improperly dismissed. In that case, the employee requested exemption from receiving a required TDAP vaccine (to protect against tetanus, diphtheria, and pertussis) for medical reasons, specifically because she had a history of allergies and other medical conditions and suffered from “severe anxiety” about the vaccine’s potential side effects. Because she alleged her employment was terminated while other employees were permitted to forgo the vaccination and remain employed, the Third Circuit revived her case because her allegations raised an inference of discrimination. 

It’s worth noting that the Third Circuit discussed the parties’ mutual responsibility to engage in the interactive process (i.e., conflict resolution with respect to the employee’s exemption request). Citing the Seventh Circuit’s opinion in Bultemeyer v. Fort Wayne Cmty. Schs., the Third Circuit wrote:

[B]oth parties bear responsibility for determining what accommodation is necessary . . . [N]either party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.

The Third Circuit went on to express that an “employer can show its good faith in many ways, such as: meeting with the employee; requesting information about the employee's condition and limitations; asking the employee what accommodation she wants; showing some sign of having considered her request; and offering and discussing available alternatives when the request is too burdensome.”

Unfortunately, as with many statutes, there are few bright-line rules or clear answers of what constitutes an ADA violation. Congress intentionally left these definitions vague, preferring for each case to be decided after a fact-intensive analysis. Consequently, litigating under the ADA is time-consuming, expensive, and unpredictable. This is another reason that these situations lend themselves to conflict resolution, which uses principles of negotiation and mediation to manage and resolve the conflict between the parties before the situation escalates and results in litigation.

How conflict resolution can help

As indicated above, an employer’s decision to establish a mandatory vaccination policy might create conflict in the workplace between an employer and its employees that could result in litigation. Fortunately, both the ADA and Title VII have built-in mechanisms for conflict resolution. As noted before, whenever an accommodation is sought, the employer and employee are obligated to have a conversation. In these conversations, the employer usually has its own goals, such as protecting the business (including its workforce, customers or clients, and others) and avoiding potential lawsuits while getting the job done. The employee may also have concerns, such as protecting his or her sincerely held religious beliefs or health, wondering whether an accommodation will be granted, and worrying about losing his or her job. The employer’s and employee’s interests may not be aligned, and the obligatory dialogue is designed to bring both sides together to discuss their concerns and explore resolution.

This conversation is an informal mediation process. If the employer and employee reach an impasse, they have an opportunity to start a more formal mediation process, with the help of a trained neutral. Mediation can strengthen the connection between employer and employee (and because people do talk, other employees) while potentially leading to resolution.

Other considerations

Even more issues arise in union settings. Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activity. Employers must exercise due care before taking any adverse employment action against employees who collectively discuss, object to, or protest an employer-mandated vaccination, as this could lead to an unfair labor practice charge. In addition, under Section 8(d) of the NLRA, unionized employers must negotiate collectively with their unionized workforce over all matters affecting wages, hours, and other terms and conditions of employment. The EEOC might have authorized employer vaccine mandates, but an employer’s implementation of a mandatory vaccine policy for its unionized workforce probably will require notice and collective bargaining, and unionized employers should consider the potential risk of work-stoppages and a collective response to any mandate. There is a long history of successful use of alternative dispute resolution processes in cases involving labor unions.  Employers are required to engage in good-faith negotiations and explore options connected to any change in the terms of a union employee’s employment.

These questions and concerns might explain why risk-averse employers are still debating the question of mandating vaccination, yet there are many ways to avoid potential litigation. A first step: prepare for disagreement in the workplace and difficult conversations. Talking is the most elementary form of conflict resolution. Employers should develop clear workplace communications – remembering that people have many complicated concerns about COVID vaccinations- and - clearly articulate their justification for any COVID vaccination policy they choose to implement, again, remaining mindful of Section 7 of the NLRA, which protects workers’ rights to engage in concerted activity. Employers should consider holding informational meetings, educational presentations, and town halls before implementing any COVID-related policy or mandate. 

To avoid litigation that may arise from the many legal and situational issues connected to any decision about a COVID vaccine, employers should consider implementing internal grievance and conflict resolution policies, internal mediation and arbitration processes, and compulsory arbitration, either as a condition precedent or alternative to litigation. While these internal conflict resolution processes may not eliminate all forms of litigation protected by public policy, like workers’ compensation claims or unfair labor practice charges, they can help employers manage disharmony in the workplace before it reaches litigation. 

  If employee retention and workplace harmony are important, employers should try to earn employee buy-in, whether a vaccine is mandatory or voluntary. Educating employees about the costs and benefits and pros and cons of receiving (or not receiving) the vaccine will be helpful, especially if the employer can highlight business-specific information. Employers can tie reopening and resuming business “as usual” to achieving herd immunity, thus emphasizing the benefit of becoming vaccinated without imposing any requirement. They might also consider doing blind polling through tools such as SurveyMonkey to gauge employee feedback concerning the vaccine (though in any such surveys, employers must exercise care not to violate the ADA’s prohibition against employee “medical examinations”). Depending on the specific circumstances and the employer’s business, employers might be inclined to simply encourage their employees to get vaccinated (rather than issue a company-wide mandate), while continuing to implement other preventative measures in the workplace following federal agency protocols and recommendations from the Centers for Disease Control, the World Health Organization, local departments of health, and other agencies. Of course, if a vaccination program is voluntary, employers should clearly convey that this is a matter of choice, with no pressure to participate.  All these conflict resolution – and conflict prevention – efforts could pay big dividends for the employer who strategizes and creates a thoughtful vaccine plan for their workplace.

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    Benjamin E. Widener

    Author

    Benjamin E. Widener is a Shareholder in the Employment and Litigation practice groups at Stark & Stark in Lawrenceville, NJ, and Chairman of the firm’s Employment Law Group, responsible for managing labor and employment work handled by the firm. Ben represents his clients in all aspects of labor and employment law, concentrating his practice in employment litigation and employment counseling. He can be reached at bwidener@stark-stark.com.

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