Aug. 30 — A private company cannot discriminate against an employee for being white, according to the Tennessee Department of Labor and Workforce Development. Another cannot discriminate against an employee because he is a man.
State Representative Robin Smith R-Hixson wants to know where state law applies to private companies requiring their employees to be vaccinated against the COVID-19 virus.
That’s a good question and one that deserves a clear and precise answer from Tennessee Attorney General Herbert Slatery.
Smith, who seeks legal advice, said up front that she “can speak firsthand about the effectiveness of the vaccine for our family.” But, she said, “I understand the different sides of this argument.”
Private companies have the right to determine many terms and conditions of employment, and the story on this page has long supported them in doing so. But federal and state laws have also limited some of these conditions over the years, which is likely why lawmakers are asking.
Elsewhere, the US Department of Justice has already weighed in, saying the Food, Drug and Cosmetic Act requires employees to be made aware of their “option to accept or refuse administration” of a vaccine or emergency medication. But it does not prohibit employers from imposing vaccination as a “condition of employment”.
Previously, the Federal Commission for Equal Employment Opportunities (EEOC) had proposed guidelines that federal laws prohibiting discrimination in the workplace “do not prevent an employer from requiring that all employees physically entering the workplace be vaccinated against COVID-19 “.
But the EEOC also said there are cases – for medical or religious reasons, for example – where employees could be accommodated through alternative measures such as weekly COVID-19 testing, wearing masks in the office or remote work.
Smith, however, posed his question to Slatery about a vaccine being “a condition of employment” through Tennessee’s existence as a “right to work” state, meaning his ruling that workers do not have to join a union to get or keep a job. .
She also wondered what legal status an employee would have if, for some reason, the employee was in “an unfavorable, harmful or fatal state of health” as a result of a vaccine, and what legal protections exist for an employee. company if an employee or employees are in this state of health.
The state’s “at will” status in terms of labor law complicates the scenario. Although “an employer cannot discriminate against any employee on the basis of race, sex, age, religion, color, national origin or disability”, he “can legally dismiss an employee. employed at any time for any reason, or for no reason without incurring legal liability. “
This problem is similar but not exactly the same as the incidents that have occurred in recent years in which private employers have been asked to make decisions contrary to their religion, such as covering the cost of abortives for employees or selling cakes. marriage to same-sex couples. .
The U.S. Supreme Court ultimately ruled – albeit in very nuanced terms – that employers were not required to provide drugs that induce abortions or cakes to gay couples if it was against their religion.
In this case, however, the warrant involves the introduction into the body of a vaccine which, until this month (and only in the case of Pfizer) had only been approved for emergency use.
However, requiring vaccines is nothing new for private facilities. A number of states have laws requiring employees of hospitals and nursing homes to be vaccinated against diseases such as measles, mumps and rubella, and a few require such workers to receive an annual vaccine against the disease. flu.
Of course, this is all relatively new. The first hospital in the country to make vaccination a condition of employment was Virginia Mason Hospital in Seattle in 2004. And although the hospital could report 98% coverage in three years, it still allowed withdrawals for medical and religious reasons.
With COVID-19 vaccines, a number of states already have vaccination mandates for all state employees (some are even adding state contractors and volunteers on site); for government employees working only in public and private health institutions; for all staff in public and private schools from kindergarten to grade 12, public and private higher education institutes and day care centers; and various combinations of the above.
Cities and individual businesses – New York City city workers and new Delta and United Airlines employees are just a few examples – are also demanding vaccines. Some, like the city of Chattanooga and Walmart, offer their employees financial incentives to obtain them.
Based on current Tennessee law and recent EEOC guidelines, we believe Slatery will side with supporting what has been called a “soft” private employee mandate with accommodation. for vaccine alternatives. We believe this is a reasonable compromise that protects both employers and employees.