A Hard-to-Balance Scale
Litigation Section leaders agree that the vaccination requirement in Bridges does not implicate the public policy exception to at-will employment. “An essential requirement of any public policy claim is that the employee identify the source of the alleged protection,” notes Jerry M. Cutler, New York, NY, cochair of the Section’s Employment & Labor Relations Committee. “In Bridges, the court rejected the notion that federal law could be the source of any such policy; and in the absence of this legal underpinning, the court was free to find that the vaccination requirement was reasonably related to the hospital’s legitimate interests in protecting the health of its patients and employees,” he explains.
Section leaders recognize the difficulty in balancing the different interests of employers and employees under the circumstances. “It is imperative that the private employer be allowed the opportunity to make certain requirements for employment or continued employment, in this case, for the benefit of the greater public health policy,” remarks David D. Moore, Sylva, NC, cochair of the Section’s Civil Rights Litigation Committee. But “it can be a slippery slope in going forward with other potential rights violations,” he observes.
“Any balancing of interests could consider whether the work rule furthers the employer’s legitimate interests,” but “at the same time, it should be determined whether there are other means of advancing these interests that do not unreasonably interfere with the rights of employees and which do not impose an undue burden on the employer,” explains Cutler.
The End Is Not Near
Bridges appears to be part of a trend. Federal district and appellate courts in Maine, New York, Rhode Island, and Kentucky have also rejected attempts to enjoin workplace vaccination requirements. So far, the U.S. Supreme Court has declined to hear these cases. However, on November 12, 2021 the U.S. Court of Appeals for the Fifth Circuit issued an order enjoining OSHA from enforcing its emergency regulation requiring private businesses to mandate COVID-19 vaccination and testing, so the final outcome of this issue remains to be seen.
“Workplace vaccination mandates are relatively new and have given rise to questions about whether employers can impose such requirements,” Cutler observes. “It is therefore important for the federal government, as OSHA has done with its recent emergency temporary standard, to provide guidance on whether employers may require employee vaccinations, or testing as an alternative,” he remarks. “Legal challenges to OSHA’s authority to impose these requirements have already been raised, and the ultimate determination will be left to the courts at least in the near term,” Cutler states.
Private employers’ vaccine mandates have triggered a divided legislative response on whether private employers’ vaccine mandates should be banned. Many have laws and directives limiting or prohibiting these mandates, including Alabama, Arkansas, Florida, Iowa, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia. Other states and U.S. territories have laws and directives requiring COVID-19 vaccination in private workplaces, including California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Puerto Rico, Rhode Island, Virginia, Washington, and Wisconsin. Many times, states enact these requirements for employers who are either state contractors, receive state funds, or provide education, childcare, or healthcare.
Moore cautions that hasty legislative “fixes” can have unintended long-term effects on Constitutional and legal protections for individuals. “The constant conflation of public health issues with civil rights violations can dilute the actual legitimacy of constitutional/civil rights claims,” he adds.
If the legitimacy of OSHA’s new rules is upheld, Cutler advises practitioners to counsel their clients to “make preparation now”—“familiarizing themselves with OSHA’s requirements, preparing to update their policies and procedures, and getting ready to issue any required communications,” notes Cutler.