Employee Protests and Walkouts Over Vaccine Mandates

COVID-19 continues to present challenges to employers who are generally obligated under Occupational Safety and Health Administration (OSHA) regulations, to provide their employees with a safe and healthy workplace. One of the most significant present challenges is addressing employee protests over mandatory vaccination policies. Such protests may include groups of employees confronting management at the workplace, distributing flyers to coworkers, picketing outside the property, or even striking. Employers may be surprised to learn that workers have significant rights in this area – regardless of whether they are part of a unionized workforce. However, employers also have important rights as well, so it is critical to understand where the lines can be drawn. Here is a summary of employer rights and obligations when it comes to vaccine protests and walkouts and a list of key considerations they should keep in mind as this situation develops.

Government Vaccine Mandates

Beyond the Executive Order requiring most federal contractors to mandate that covered employees be fully vaccinated by December 8, OSHA is finalizing a sweeping Emergency Temporary Standard (ETS) mandating that private employers with 100 or more employees either ensure their workers are vaccinated against COVID-19 or require unvaccinated employees to produce a weekly negative test result before coming to work. Unfortunately, many employees may view these requirements as presenting an ultimatum of choosing between their jobs and their beliefs. There have already been widespread reports of employee protests and walkouts in various parts of the country in response to the federal contractor mandate, and anticipate similar employee activity in response to the ETS.

The first question to ask is what rights these employees actually have when it comes to such activity.

Group Protests Over Vaccine Mandates Likely Constitute Protected Concerted Activity

Section 7 of the National Labor Relations Act (NLRA) protects workers at both unionized and non-unionized workplaces who engage in concerted activity for the purpose of mutual aid and protection. Not only does this cover union organizing activity, but it also covers protests over wages, hours, and working conditions.

In late March, the National Labor Relations Board (NLRB) issued Memorandum GC 21-03, which signals the Board’s intention to more aggressively enforce employees’ Section 7 rights. The GC Memorandum lists examples of employee advocacy involving “vital categories of workplace life” that the Board would find to be “inherently concerted” – and therefore protected – including complaints about racial discrimination and workplace health and safety. Based on this latest guidance and the Board’s long history of broadly construing the NLRA to protect workers’ rights, employers should assume that employee protests and walkouts related to mandatory vaccination policies will likely be deemed protected concerted activity.

This is true regardless of whether the activity is in response to your organization’s decision to implement a mandate in direct response to a government order (e.g., federal contractors, healthcare organizations, and large employers) or merely because you want to promote a safer and healthier environment. Employee protests over an employer’s decision to not implement a mandatory vaccination or testing policy altogether, or your decision to implement one but not the other, likely would also be protected, because employees may reasonably fear their employer is not doing enough to protect them.

As a general rule, employers should address employee protests over vaccine mandates the same as they would address any other form of protected concerted activity. You should understand that any discussion of protected activity under the NLRA is a highly technical area of the law involving subtle fact-sensitive distinctions between lawful and unlawful conduct, but with significant ramifications from a remedial standpoint. For this reason, you should tread cautiously and bring your labor counsel into your discussions before you take significant steps. However, here are some general considerations to keep in mind.

• The very first thing you should do is ensure that your solicitation and distribution policies and employee handbooks are lawful.
• You should also proactively educate your supervisors and managers on responding to protected concerted activity. Since your organization could be held liable based on their actions, you should ensure they understand the contours of your policies and what the law does and doesn’t allow.
• Be prepared for your leaders to be engaged in workplace discussions about your vaccine mandate. You should prepare for increased conversation in the workplace regarding the mandate, possible protests, and related matters. Keep in mind that established labor law prevents you from prohibiting these conversations or firing an employee for discussing their concerns. Workers who bring complaints about the workplace to management are covered under the NLRA, whether or not they are unionized. Therefore, if you take adverse action against these workers for their concerted, protected activity, you could face an unfair labor practice charge. As a result, you should not discipline workers for engaging in such activity.
• Generally, handing out leaflets or handbills in non-working areas is an acceptable practice under the law. It is considered a protected form of speech, absent evidence of blatant vandalism, violence, trespass, or other unlawful behavior. But if your employees are violating a lawful solicitation/distribution policy — perhaps because they are in work areas passing out flyers that question the safety of vaccines – you should discipline the employees consistently with how others are disciplined for the violating the same policy.
• Protestors will often place a large banner nearby as another form of visible protest. This behavior is also largely protected by law, unless there is evidence of unlawful confrontational activity such as threatening customers or other employees.
• Protest participants who engaged in picketing – carrying protest signs and standing or marching in front of your business – are subject to a greater degree of regulation. Because picketing usually contains an element of confrontation or coercion, such conduct is typically seen as something more than just speech. Pickets cannot block entrances or exits, cannot commit overt acts of intimidation, cannot contain threats or violence, and cannot enter private property unless invited there.
• If employees are engaging in illegal conduct in the course of their protests, such as trespassing, blocking entrances, or otherwise disrupting your production or services, their conduct could exceed the bounds of NLRA protection. This could permit you to implement disciplinary measures against them which are consistent with other disciplinary actions.
• Know your property rights. In most states, third parties are not permitted to access your private property to engage in these protest activities. Even if you typically invite members of the public onto your premises to engage in business, they do not have the unfettered right to conduct protests there. If protestors encroach on your property or block access to it, you can take legal steps to enforce your rights by calling the law enforcement authorities.
• Know your limitations. There are certain actions you should generally not take without first having a discussion with your labor lawyer. You should not spy on protestors or your employees who are gathering in public spaces. This means you should not watch them, stare at them, photograph or video record their protests, record the names of those protesting, or do anything else that suggests or implies they will be punished for their participation in any sort of rally.
• Understand the rules related to workplace absences tied to protests. While you have a legitimate interest in maintaining normal levels of productivity at work and enforcing your attendance policies, under certain circumstances you may have to refrain from disciplining workers who fail to attend work. The NLRB will protect workers who engage in protected absences, but not necessarily those who are found to be participating in unlawful intermittent strikes. There is a detailed analysis to conduct to determine whether worker activity during protests is protected or not, but one of the key factors the NLRB would look to is how often the protests reoccur. The more frequently your workers walk out, the more likely their actions are considered unprotected. One-time protests are often deemed protected, while the NLRB is less likely to condone continued work disruptions.

A company’s best defense against the potential expense and aggravation related to federal or state law violations is to proactively review and revise as needed all Human Resources policies, handbooks, hiring procedures, compensation, benefits, training programs, communications tools and other functions. The professionals of PHHR are ready to assist your organization with this type of training as well as to maintain compliance with the latest state and federal mandates.

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Paul Hilton is a certified Human Resources Consultant, located in Columbia, SC.
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