COVID vaccine

The prevailing wisdom says you can mandate COVID-19 vaccinations for your employees.

The better question is: should you?

What allows you to make the COVID-19 vaccination mandatory?

A mandatory vaccination requirement in your workplace implicates several federal employment laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII). Employers with 15 or more employees are generally subject to these laws.

To be fully transparent, there is not a definite answer to the mandatory vaccination question until and unless it is litigated because this is a novel issue. For example, some lawyers are concerned that the vaccine has not actually been fully approved and licensed by the FDA but is instead being administered under an Emergency Use Authorization only. There is, however, guidance from the Equal Employment Opportunity Commission (EEOC), which enforces the above laws, indicating mandatory vaccination policies are lawful if drafted and executed properly.

When might you have to honor an employee’s refusal to accept the mandatory vaccine?

  • If a disabled employee has a medical objection and may be owed a reasonable accommodation. Here the company has to perform a direct threat analysis and engage in an interactive analysis with the objecting employee regarding a reasonable accommodation.
  • If an employee with a sincerely-held religious belief objects based on his religious belief. The company will have to determine whether the employee’s objection creates an undue hardship and whether the company can accommodate the vaccination refusal.

Now that you know you can (probably), should you?

According to research by the Society for Human Resource Management (SHRM), 60% of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. On the other hand, 28% of workers are willing to lose their jobs if their employer mandates the COVID-19 vaccine. Thus, you need to examine whether your company is prepared for the possibility of losing 28% of your workforce over the vaccine. If you do not terminate the employment of the objecting employees (who have no valid exemption as discussed above), you will now have a different set of legal and practical problems to solve.

Mandating the vaccine in your workplace will surely alienate a significant portion of your employees, especially if any have secular objections to the vaccine (as opposed to religious objections) and/or have adverse reactions to the vaccination. If an employee has an adverse reaction to the vaccination, you will need to report that to your Workers’ Compensation carrier.

Moreover, the recent blood clot issue with the Johnson & Johnson vaccine is a good example of how employers do not know what they are taking on when mandating a vaccine.

Can you be held liable for NOT mandating the vaccine in your workplace?

Are you feeling stuck between a rock and a hard place yet? While employers have an obligation to provide a workplace reasonably free of health and safety hazards (check out OSHA requirements), what this means for a specific employer or industry will need to be addressed on a case-by-case basis.

If you would like help wading through these competing interests as it relates to your company, please call us to schedule a consultation.

Pending South Carolina Legislation

Three House bills and one Senate bill are pending in South Carolina, all of which would prohibit employers from mandating a vaccine. See House Bills 3217, 3511, and 3711 and Senate Bill 177.

Senate Bill 177, and similar House Bill 3711, would prevent any person from being compelled to receive a COVID-19 vaccination and prohibit employers from taking adverse actions—including (i) termination, (ii) suspension, (iii) involuntary reassignment or (iv) demotion—against employees who choose not to be vaccinated. Senate Bill 177 states that individuals treating or caring for vulnerable populations (persons over the age of sixty (60) or with underlying medical conditions) can be required to receive a vaccination. The Bill has no prohibition against an employer encouraging, promoting or administering vaccinations or offering incentives to employees who choose to be vaccinated. Senate Bill 177 was passed by the Senate and sent to the House where it is in committee. https://www.scstatehouse.gov/sess124_2021-2022/bills/177.htm The 2021 session adjourns on May 13.

SOUTH CAROLINA LAWYERS WHO WORK AS HARD AS YOU DO

DEFENDING YOUR BUSINESS IS OUR BUSINESS

HOW TO TACKLE COVID WEARINESS

Ten months ago, no one thought we would still be in the midst of a pandemic and trying to persuade our employees to wear masks and wash their hands until they resemble crocodile skin. Yet, here we are, and we must lead our employees out of the COVID funk that has settled on the world. “How,” you ask?

Connect with them. Start with empathy instead of impatience. Let them hear from you – that you are also weary of everything that comes along with COVID, you are also frustrated, you also want life to go back to “normal,” you would also like to have skin on your hands, you also want to see their entire faces and warm smiles. Then explain why you are committed to wearing a mask, to appropriately physically distancing from others, to cleaning the workspace, to washing your hands. You are committed because it protects them and their families. You know that they also want to protect their co-workers and their families.

Speaking of connection, if your employees are working remotely and feel disconnected, brainstorm fun ways to connect. Bonus points if the fun helps you get to know more about each other. Keep it work appropriate though. For example, I do not recommend “Pajama Mondays.” To the contrary, this is an opportunity for people to put on their outside clothes for once. You can also let employees know when you are hosting a Zoom meeting where it is okay for kids and pets to pop up. You could challenge employees to come up with their own connection ideas and choose a winning idea monthly. Here are some fun connection ideas our creative Firm Administrator, Michelle Holmes, implemented:

🤡 Each employee submitted a photograph of their pet, Michelle created and distributed a pdf of the pets, and each employee had to match the pet with the appropriate owner/servant of that pet. The winner won a gift card to a pet store.

🤡 Before a scheduled firm Zoom meeting, Michelle mailed out colored glasses. The reason for the glasses was a mystery to us, but we were instructed to wear them for the meeting. At the meeting we learned we were wearing them in support of a client’s charitable cause. After learning about that cause, we took a screenshot of the Zoom video and forwarded it to our client to show our support.

Next, highlight any positive changes you have made because of COVID. The most obvious example is if you realized employees could work remotely and still effectively perform their jobs. If you plan to continue allowing some level of remote work post-COVID, you might let your employees know of that decision. If you are one of the businesses though that needs your employees at the physical work site, finding positives might be more difficult. Maybe you improved your technology this year, which makes employees’ work easier, or you might have improved the office ventilation. Everyone loves breathing cleaner air. Perhaps your employees were pushed into being more patient or thoughtful, and now have a stronger team. Perhaps you have more flexible work hours that employees enjoy and can become a permanent option. Whatever are the successes, celebrate them.

What if your employees argue their freedom comes first and, anyway, COVID is not real, or at least not serious? First, do not argue with them. In fact, maybe you personally agree with them, but you have regulations and protocols to enforce. It is best to refrain from engaging in conversation about these beliefs at work. Whether the opinions are born from political or religious beliefs, you are about to get into a conversation that makes lawyers squirm. If you want to save your money, do not have these conversations. Just acknowledge that your employee has the freedom to his own opinions about COVID (mind your tone here if you do not agree with him) and ask him if he is willing to put those aside to help you create a harmonious workplace. Do not use the word safe because he thinks it is already safe. If you have a good working relationship, he will want to help you. If he refuses to comply with the protocols, then you need to call the GaffneyLewis employment law team to assist you.

Be on the lookout for our next blog post on COVID vaccinations coming out soon.

SOUTH CAROLINA LAWYERS WHO WORK AS HARD AS YOU DO

DEFENDING YOUR BUSINESS IS OUR BUSINESS

Crenshaw v. Erskine College

In a recent employee handbook case, Crenshaw v. Erskine College, the South Carolina Supreme Court departed from a long line of precedent without the slightest acknowledgment of doing so.

A jury awarded a tenured professor $600,000 after his employer, Erskine College, terminated his employment in breach of his contract.  The contract was created by mandatory language in a Faculty Manual.  The trial court overturned the verdict, ruling the employer did not breach its contract with the professor.  In a 3-2 decision, with Chief Justice Beatty and Justice Hearn dissenting, the Supreme Court affirmed the trial court’s grant of judgment to the college and held that, as a matter of law, a Faculty Manual constituted an employment contract between the college and its tenured professors.  Nevertheless, the college did not breach the employment contract and the termination of the professor’s employment was lawful.

The majority of the opinion discusses the terms of the contract, the effect of tenure on the Court’s analysis, due process, and whether the college breached the contract in the way it handled the professor’s termination of employment.  The most startling part of the opinion is, however, the Court’s discussion about whether the Faculty Manual created a contract of employment despite the Manual’s conspicuous at-will disclaimer.  “In this case, the Faculty Manual states conspicuously at the bottom of almost every page, ‘This is not a contract of employment.’”  The Court stated, “Erskine refused at trial to concede the Faculty Manual is a contract, and continued its refusal to concede the point until we forced it to do so at oral argument before this Court.  We hold Erskine’s Faculty Manual is a contract with its tenured professors as a matter of law.”

The Court does not mention South Carolina’s at-will disclaimer statute, S.C. Code 41-1-110, or explain how a handbook that contains a conspicuous disclaimer was held, as a matter of law, to constitute a contract of employment.  Because the Faculty Manual’s “conspicuous disclaimer” did not comply with the statute’s requirements to be considered conspicuous as a matter of law, a history lesson is in order.

Prior to the South Carolina legislature enacting § 41-1-110, the South Carolina Supreme Court held employee handbooks created contracts of employment when the handbook set forth procedures binding on the employer because they contained mandatory language and the handbook did not contain a conspicuous disclaimer.  Although the presence of mandatory or promissory language and a non-conspicuous disclaimer created a factual issue for a jury to determine, a court was to resolve, as a matter of law, whether the employee handbook constituted a contract when the handbook’s policies and disclaimers, taken together, established that an enforceable promise did or did not exist.  For example, if a handbook contained a conspicuous disclaimer, the employee handbook did not create an employment contract as a matter of law.  Moreover, at-will disclaimers were conspicuous as a matter of law where the disclaimer was placed in a prominent position and was in bold, capitalized letters.

In 2004, the South Carolina legislature, with push from the business community, enacted the at-will disclaimer statute, § 41-1-110, which provides:

It is the public policy of this State that a handbook, personnel manual, policy, procedure, or other document issued by an employer or its agent after June 30, 2004, shall not create an express or implied contract of employment if it is conspicuously disclaimed. For purposes of this section, a disclaimer in a handbook or personnel manual must be in underlined capital letters on the first page of the document and signed by the employee. For all other documents referenced in this section, the disclaimer must be in underlined capital letters on the first page of the document. Whether or not a disclaimer is conspicuous is a question of law.

Thus, an at-will disclaimer compliant with this statute is supposed to prevent litigation over whether an individual employee handbook created an employment contract.  Cases have continued to be litigated in recent years where the disclaimer was not compliant with the statute or where the handbook was published before the statute’s enactment even though the employee was hired after 2004.

The Court has previously held judgment as a matter of law is inappropriate where a handbook or manual contains a non-conspicuous disclaimer and mandatory policy provisions.  Recognizing that, the Court in Crenshaw stated, in dicta, that the question of whether the Manual was a contract may need to be submitted to a jury in cases involving non-tenured faculty and non-faculty employees.  The Court appears to have decided the existence of a contract did not need to be submitted to a jury because the professor was tenured.

Because the professor was tenured, the Court’s analysis was distinguishable based on the promises inherent in the granting of tenure.  “Tenure – by its very nature – is a promise.”  The college’s granting of tenure to the professor was an offer to fulfill the promises set forth in the Manual, and he accepted that offer through his continued performance as a tenured professor.  The Court opined that the promise of tenure left the Court with “no doubt that the Faculty Manual is a contract” and warned that “[t]he role of the granting of tenure in our analysis of whether the Faculty Manual is a contract with tenured faculty probably renders this analysis inapplicable in any other context.”  (emphasis added)

In the dissent, written by Justice Hearn, the Court criticized the majority’s decision that the Faculty Manual created a contract of employment because:

the existence of the contract and the terms of that contract were issues for the jury to determine, not this Court. Erskine maintained throughout this litigation, including during the trial, that the Faculty Manual did not create a contract of employment.  Given Erskine’s continued insistence that the handbook did not constitute a contract, the trial judge had no alternative but to let the jury determine whether a contract existed.

Justice Hearn discounted the effect of the tenure policy in its Manual, stating the inclusion of that policy did not necessarily transform the Manual into a contract.

In essence, the majority found there was promissory language – a tenure policy – and a conspicuous disclaimer.  Instead of following its own precedent and holding no contract of employment existed, as a matter of law, the Court held the Faculty Manual constituted a contract of employment as a matter of law.  Even though the dissent takes issue with the majority not following precedent, the dissent appears to do the same, stating the decision should have been in the hands of a jury.

The Takeaways:

1. If the majority found, as a matter of law, that the disclaimer was conspicuous, as it stated, then the Court’s analysis should have stopped there with a ruling that the Faculty Manual did not create an employment contract.  Thus, in using the term “conspicuous,” did the Court not mean conspicuous as a legal term of art in handbook cases?  Or are we in a new world where a handbook can contain a conspicuous disclaimer and still be held to have created a contract of employment, thus limiting the employer’s ability to lawfully terminate an employee’s job?

2. Even though the majority opinion states it “probably” applies only to tenured faculty cases, it left open the door for an argument that another type of promise, other than tenure, could override the finding of a conspicuous disclaimer and cause an employer’s handbook to constitute a contract of employment.

3. Employers need to ensure all handbooks, manuals, and other documents contain an at-will DISCLAIMER that complies with the statute.  Employers should not rely on the inclusion of a compliant disclaimer but should continue drafting policy language in permissive, rather than mandatory, terms.

Drafting or revising handbooks and policy manuals in compliance with statutory and case law is complicated. If your business needs help doing so, or with assessing whether the company’s handbook needs an overhaul to begin with, contact the employment lawyers at GaffneyLewis.  We’ll make your business our business.

SOUTH CAROLINA LAWYERS WHO WORK AS HARD AS YOU DO

DEFENDING YOUR BUSINESS IS OUR BUSINESS

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