Wednesday, December 5, 2012

It's About Freedom...

Waterbury Hospital in Connecticut has suspended 100 workers for two weeks in preparation for their dismissal for failure to be vaccinated against the flu. Workers who are refusing to be vaccinated are not raising a religious objection (implicating Title VII protections) and they are not claiming a likelihood of harm (potentially implicating a public policy exception to employment-at-will).  Instead, they claim "Freedom" and the "Founding Fathers." Unfortunately, one of the most durable of America's freedoms is that of an employer to dismiss employees at will.  The law has changed little since 1884:

All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.
                - Payne v. Western & Atlantic Railroad Co., 81 Tenn. 507, 519-520, 1884 WL 469 at 6 (Sep. term 1884).

This is not a case of the government saying "flu shot or jail." Employees are not facing vaccination under penalty of government sanction. They have a choice: get the vaccine and work at the hospital or don't get the vaccine and work elsewhere. The Union is claiming a violation of Federal labor Law.  Given the strong preference in American law for that uniquely American concept of employment-at-will, I give the nod to the hospital.

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