Thursday, December 24, 2020

“Red” States, the National Labor Relations Act, and Covid Vaccination Mandates

In recent posts I have noted that disability and medical costs arising from adverse reactions to Covid vaccinations are likely to be covered either by workers’ compensation (when the employer requires vaccination as a condition of employment) or perhaps by the federal Countermeasures Injury Compensation Program (CICP). I noted that workers’ compensation causation analysis might change if state or federal government were to require inoculation. Frankly, I had not considered the situation discussed in this morning’s Daily Labor Report (behind a paywall): “State lawmakers are floating proposals aimed at preventing government agencies, employers, or schools from forcing people to get the Covid-19 vaccine, although none of the bills has succeeded yet.” While I cannot imagine that any such proposal would become law—because I think most state governments, wherever located, would not want to bind their hands aggressively on emergency public health powers—it does suggest that there may be a good deal of reluctance by states to enact an employment vaccine mandate. The nascent backlash at least suggests that employers may have to unilaterally require vaccinations.

If employers require vaccines, the case for workers’ compensation coverage of adverse effects is strengthened, for reasons I have mentioned. And I want to qualify a circulating mantra that was again repeated in the same Bloomberg article:

Employers generally have the authority to require workers to get vaccinations and terminate them if they refuse, as long as the employers satisfy federal requirements related to accommodating religious objections or medical conditions that might qualify as disabilities. The U.S. Equal Employment Opportunity Commission updated its guidance Wednesday on employers and vaccine mandates in light of the newly approved Covid-19 vaccine.

This essentially says that the EEOC will not consider such a termination for vaccine noncompliance to violate one of the laws that it oversees, but it overlooks an important caveat: the National Labor Relations Act (administered by the National Labor Relations Board, not the EEOC). Under the NLRA, if employees concertedly refuse to work (in other words, more than one employee at the same workplace refuses to work), under a good faith belief that their health is in jeopardy, the work stoppage is protected under black letter federal labor law endorsed by the U.S. Supreme Court. The right runs to employees, not unions: all non-union employees have the right to concertedly engage in work stoppages protesting their working conditions (a fact that sometimes surprises people, though it has been true under the NLRA for decades). And, also contrary to popular belief (and contrary even to what many lawyers believe), safety-related work stoppages by non-union employees need not be “reasonable,” they need only be undertaken in “good faith.” The employees must really believe work will jeopardize their safety and, while the employees can be “replaced” during the work stoppage they cannot lawfully be “terminated.” I have written an article (forthcoming in the Saint Louis University Law Journal) discussing the American law of work stoppages in 21st century workplaces that reviews these principles (though things get tricky in the Gig economy).

How ironic it would be if red state legislators (historically in visceral opposition to federal labor law) were to see the situational utility federal labor law presented them. My guess is that they will not want to let that genie out of the bottle. It is another interesting example of the often subtle interplay between workers’ compensation, workplace safety, and labor law. In some ways, this has always been true. After all, the first American workers’ compensation statutes essentially copied the British Acts of 1897 and 1906. Those statutes resulted from pressure applied by British labor unions increasingly able to threaten use of the strike weapon in reaction to declining safety in 19th century industrial workplaces.

Michael C. Duff

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