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
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.
How Employers Should Address Employee Protests Over Vaccine Mandates
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
- 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.
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
- 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
- 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
Paul Hilton Human Resources Consulting works with our clients to insure that all required documentation is correct and sufficient to successfully defend against a claim to any unemployment compensation commission.
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