BY Kevin Troutman and Jacqueline Del Villar, Fisher Phillips
Although many were hopeful that a national vaccine rollout would bring some sense of normalcy by summer’s end, with fall now upon us and the Delta variant continuing to surge, such hopes have come and gone. Instead, with the continuance of the pandemic, the controversy surrounding vaccinations, and ever-evolving state and national legislation, pandemic-related litigation continues to rise. Employers must remain on high alert as to the various duties owed to their employees as they make pandemic-related decisions in the midst of this second wave of the pandemic.
Healthcare Industry as a Target in Pandemic-Related Litigation
Pandemic-related employment litigation has taken many forms, and the healthcare industry has continued to be the main target. With healthcare employees making up the front lines in the fight against the Coronavirus and robust compliance obligations for healthcare employers, this comes as no surprise. As of the beginning of last June, more than one in five of every pandemic-related lawsuit filed across the country had been filed against healthcare employers: 685 out of just over 3,200 cases, or 22.3% of all claims filed. The most common types of claims brought forth in these lawsuits have been: whistleblower retaliation lawsuits, employment discrimination, and claims concerning remote work and conflicts regarding leave.
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Adding to the complexity of the legal landscape, covered healthcare employers with 500 or fewer employees also continued to work through understanding the compliance obligations they faced under the Families First Coronavirus Response Act (FFCRA). Additionally, as the industry led the way in mandating Covid-19 vaccines for their employees they were also the first targets of lawsuits challenging such mandates. While so far, such mandates in the industry have been upheld and plaintiffs still appear to be falling well short of articulating a viable legal claim, the ensuing controversy fueled by considerable media attention will continue to create fodder for future legal claims regarding the application of these mandates.
Important Reminders in Navigating a Surge of Lawsuits
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The surge in these types of lawsuits will likely continue. However, employers can reduce the risks and conflicts that they bring by remaining vigilant about their employment practices despite the added obligations the pandemic has thrust upon them.
Whistleblower Lawsuits
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In the midst of a global pandemic, it is only logical that more and more employees have voiced concerns about their safety and well-being in the form of both formal and informal complaints. With that in mind, employers should not forget to navigate personnel decisions involving a complaining employee with the utmost care and diligence. Employers can and should reduce the risk of whistleblower retaliation claims by performing a risk analysis with internal or external legal counsel when making employment decisions such as termination regarding a complaining employee. That analysis should consider:
- Timing: The temporal proximity of the employee’s complaint to the adverse employment action will be important. The closer together in time, the greater the probability of an inference of discriminatory intent.
- Reason for Termination: Employers should have a clearly articulated reason for adverse employment actions such as termination, which should be consistent with prior practice and supported by well-documented facts such as employee records, communications, and disciplinary actions.
- Employers’ Complaint Policy and Response: Evidence of an employer’s policy and practice of encouraging and appropriately responding to complaints can help offset any inference of retaliation. However, it is always important to confirm that the employer has followed its own policies in regard to the complaining employee.
Vaccine Mandate Accommodations
From a legal standpoint, vaccine mandates by employers appear to suggest a straightforward legal issue as exemplified in the decision by federal Judge Lynn Hughes in the Southern District of Texas upholding Houston Methodist Hospital’s vaccine mandate. If employers decide that requiring vaccines is the right decision for them, they must also provide for accommodation requests on the basis of certain medical or religious reasons.
Employers should be particularly mindful that they engage in the interactive process for an employee’s request for an accommodation and consider individual circumstances before granting or denying an accommodation. In requests for medical accommodations, employers should be particularly careful about the type of medical information they require. They should avoid asking for unnecessary medical information that may impose on them additional obligations under the ADA and state and federal privacy laws. Instead, employers should make clear to the employee and their medical provider that beyond certifying that an employee may not be able to be vaccinated for medical reasons, they should not provide any additional information such as an employee’s specific diagnosis or medical concerns.
In responding to requests for religious accommodations, an employer’s first inquiry should be in deciding whether the employee’s articulated reason for a religious accommodation is based on a personal choice or a “sincerely held religious belief, practice, or observance.” Federal law defines sincerely held religious beliefs as those that “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views” and “religion” includes all aspects of religious observance and practice, as well as beliefs that don’t necessarily have to follow mainstream doctrine. However, an employee is not entitled to a religious accommodation simply because they personally or philosophically do not agree with receiving the vaccine. Employers should not immediately make assumptions and instead, like any other accommodation, questions regarding the employee’s articulated reason for requesting a religious accommodation should be answered through an interactive process with the employee.
Concluding Points
Despite the surge of lawsuits in the healthcare industry, continued diligence and consistency of regular employment practices, such as making sure personnel decisions are well-documented and accommodation requests undergo an interactive process, will go a long way in strengthening an employer’s defense in any ensuing litigation.