Employment at Will Archives - Employing Alabama

Alabama Restricts Employers’ Ability to Impose Vaccine Mandates

November 9, 2021November 9, 2021Robert C. Lockwood

Alabama vaccine mandate Alabama employment law — The Alabama Legislature passed SB9 restricting the ability of employers to impose vaccine mandates.

Late last week, the Alabama Legislature passed, and Governor Kay Ivey signed, SB9 which is designed to restrict the ability of Alabama businesses to impose vaccine mandates on their employees. Here is a link to SB9: SB9 Limiting Vaccine Mandates. While there are many unanswered questions in SB9, I think most Alabama businesses will be able to comply with federal vaccine mandates while simultaneously complying with SB9.

Here are my big takeaways regarding SB9:

1. Employers are required to give their employees a specific vaccine exemption form.

Employers cannot require any employee to receive a vaccination as a condition of employment without providing an opportunity to be exempted for religious or medical reasons. Most importantly, employers must use a specific form drafted by the Legislature. To access that form: (1) click on the the SB9 link above; (2) go to page 2, line 18 of SB9; (3) “cut and paste” all text through page 5, line 5. The form must be made “readily available” to all employees along with directions for submitting the form.

2. Denials of exemptions are appealable and employers cannot terminate employees based upon vaccination status until conclusion of an appeal.

If an employer denies an exemption request, the employee will be allowed to appeal that denial to an Administrative Law Judge appointed by the Alabama Secretary of Labor. If the ALJ also denies the exemption, the employee will be able to file an appeal with a court of competent jurisdiction.

SB9 also recognizes that employers might want to terminate based on vaccination status after denying an exemption. The new law prohibits any such termination until an administrative law judge or court issues a final ruling in the employer’s favor.

3. Here’s what SB9 DOESN’T do.

SB9 does not limit an employer’s ability to gather information. It says that employers must provide the Alabama form to employees. But, it does not say this is the only form that can be given to employees. SB9 does not restrict the duty or obligation of employers to engage in an “interactive process” with employees who request an accommodation or exemption.

SB9 does not limit the accommodations that an employer can require. In fact, SB9 says nothing whatsoever about accommodations. Some of my risk-averse clients have been fairly liberal in granting exemption requests even before SB9 was passed. Indeed, exemption from the vaccine is not an exemption from the obligation to protect your co-workers. Employers who grant exemptions under SB9 can also require that employees test for COVID-19 weekly and wear masks while around other employees.

3. The Alabama grounds for exemption are expansive.

The Centers for Disease Control has extensively discussed the impact of the COVID-19 vaccine on particular groups of people. (CDC COVID-19 Vaccine Discussion). This new Alabama law seems to take a different view of COVID-19 and allows employees to attempt to opt-out of vaccines based on: (1) their own statements of health history; or, (2) a generic statement that the vaccine conflicts with sincerely held religious beliefs, practices or observances — without requiring a statement defining those beliefs. Here’s the complete list of grounds for exemption:

My health care provider has recommended to me that I refuse the COVID-19 vaccination based upon my current health conditions and medications. (Note: This is the only ground that requires the signature of a “licensed health care provider.” Other health-based reasons discussed below don’t require any medical support.)
I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.
I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.
I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.
I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the last 90 days.
I have a bleeding disorder or am taking a blood thinner.
I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.
I have been diagnosed with COVID-19 in the past 12 months.
Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.

4. Mandated exemption or just a presumption?

SB9 says that “[a]n employer shall exempt vaccination as a condition of employment for any employee who has submitted the exemption form ….” This seems fairly clear: If the employee fills out the State-sponsored exemption form, they don’t have to get vaccinated.

But, the law later says that “submission of the completed form creates a presumption that the employee is entitled to the exemption.” Moreover, it sets forth a process for an employee to challenge a “denial of a request for an exemption.” Thus, it seems that employees don’t automatically get an exemption if they fill out the form.

This internal inconsistency is important. In the next few points, I discuss conflicts between SB9 and federal mandates. If completing the form is a mere “presumption” of exemption, then Alabama employers might be able to argue that the presumption is rebutted by the requirements of federal law.

5. There are conflicts with the vaccine mandate for federal contractors.

The most glaring ground for exemption under SB9 is COVID-19 diagnosis in the last 12 months. That exemption flies directly in the face of the federal contract mandate (found here Federal Contractor Mandate) which plainly states that “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated ….”

Notably, the federal contractor mandate allow employers to grant exemptions for health reasons and sincerely held religious beliefs. So, in some ways, SB9 comports with that mandate. This is where it is important for Alabamians to know if exemption is mandated upon completion of the SB9 form or if it is merely a presumption that can be rebutted. If it’s a presumption, then I think that a federal contractor could argue that the presumption of exemption for past COVID-19 infection is rebutted because federal law does not allow an exemption for federal contractor employees on that ground.

6. There are conflicts with the CMS mandate for many medical facilities.

I discussed CMS’s vaccine mandate for medical facilities here: CMS Vaccine Mandate. That mandate imposes strict requirements on employees who seek exemptions for medical reasons:

For staff members who request a medical exemption from vaccination, all documentation confirming recognized clinical contraindications to COVID–19 vaccines, and which supports the staff member’s request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable State and local laws. Such documentation must contain all information specifying which of the authorized COVID–19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID–19 vaccination requirements based on the recognized clinical contraindications.

Obviously, SB9 does not require that level of detail for employees to obtain an exemption for medical reasons. Indeed, Alabama apparently prefers that employers to just take the employee “at their word” for a host of medical issues.

Once again, the issue will be whether exemption is mandatory once the employee submits the SB9 Form. If the form merely creates a presumption, then facilities covered by the CMS mandate might be able to argue that the presumption is rebutted by the CMS mandate requiring a more-detailed statement for medical exemptions.

7. No direct conflict with the OSHA mandate for employers with 100+ employees.

Last week, OSHA also imposed a vaccine mandate on employers with 100 or more employees. I wrote about that mandate here: OSHA Vaccine Mandate. The OSHA mandate offers employers the option to adopt: (1) a policy mandating all employees be vaccinated; or, (2) a policy where employees can “test out” of vaccine requirements. Under the “test out” option, employees are not required to be vaccinated if they test for COVID-19 on a weekly basis and observe masking protocols. If Alabama employers adopt the “test out” option, there does not appear to be a direct conflict between OSHA and SB9.

Even so, there is some level of conflict. As discussed above, SB9 grants an exemption to employees who have been infected with COVID-19 in the last 12 months. But, the OSHA standard “does not offer any exemptions to vaccination requirements based on ‘natural immunity’ or the presence of antibodies from a previous infection.”

8. Is leave without pay an option?

SB9 only restricts the ability to terminate an employee. What if an employer decides not to “terminate”? In other words, an employer could grant an exemption and then move the employee to long-term leave without pay status. This would be an aggressive strategy by the employer.

Technically, the employee could not appeal under SB9 because that law only allows appeals where exemptions are denied. But, long-term leave without pay would probably be considered a “constructive discharge.” Employers adopting this strategy would probably face a legal challenge of some kind.

9. Additional possible loophole?

Section (h)(2) of SB9 says: “Nothing in this section shall be construed to alter or amend the ability of an employer to terminate an employee for reasons other than the employee’s COVID-19 vaccination status.” This seems to reiterate that Alabama is an “employment at will” state. This means that, in the absence of an employment contract, an employer or employee can terminate the employment relationship at any time. Indeed, “employment at will” is so strong in Alabama that courts repeatedly say that an employee can be fired “for a good reason, a bad reason or no reason at all.”

SB9 also clearly states that it does not “create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer.” This means that employees cannot sue for wrongful termination. Instead, the only remedy allowed by SB9 is review “of an employee’s denial of a request for an exemption” by an Administrative Law Judge and Alabama’s courts.

I think creative attorneys could figure out ways to argue that a termination is “for reasons other than the employee’s COVID-19 vaccination status.” I also think that a “mixed motive” analysis (where vaccine status and some other reason provide the impetus for termination) could provide a defense.

10. The Alabama Department of Labor has to provide a process for employees.

SB9 requires that the Alabama Department of Labor develop a process for employees to appeal the denial of their exemption requests. DOL is supposed to release that process by November 26. In that process, DOL must appoint Administrative Law Judges to review the appeals. And, even after the ALJ rules, employees must be given the right to file a further appeal in “a court of competent jurisdiction.”

As soon as DOL issues its rules regarding the appeal process, I will provide an update.

11. Closing Thoughts

I think the Legislature’s main goal in passing SB9 was to force businesses to think-twice before terminating an employee based upon a vaccine mandate. And, SB9 dramatically slows the process for terminating employees on that ground.

But, as a practical matter, I was already advising my clients to think-twice before termination. Any time an employee asks for a religious or disability accommodation of any kind, an employer incurs risk if they terminate soon thereafter.

Each of of the federal vaccine mandates allows employers to exempt employees who have disabilities or sincerely held religious beliefs. SB9 is designed to liberalize the process for granting exemptions. But, at the end of the day, employers just need to proceed carefully and gather as much information as reasonably possible before deciding to grant or deny an exemption request. If an exemption is denied, employees can now appeal that denial to an ALJ and drag the process out. Otherwise, the process largely remains the same. Employers just have to use the additional form mandated by SB9 as part of that process.

Winning! Alabama Supreme Court Rules In Favor of My Client.

February 13, 2020Robert C. Lockwood

win winning at will at the pleasure Alabama Employment Law employment contract — The Alabama Supreme Court recently ruled in favor of the Cleburne County Commission in a dispute with its former County Engineer.

It feels good to win! And, if you operate an employment law blog and win, you should be able to talk about the case. So, that’s what I’m doing here. My client, the Cleburne County Commission, recently won a decision from the Alabama Supreme Court in a dispute with its former County Engineer. See Robbins v. Cleburne County Commission, No. 1180106, 2020 WL 502541 (Ala. Jan. 31, 2020).

Shannon Robbins was the Cleburne County Engineer. He signed an employment contract with the Cleburne County Commission for the five-year period of February 1, 2011 to January 31, 2016. The contract also contained an option provision by which Mr. Robbins could extend the contract to a sixth-year if he provided at least 60 days notice of his desire to extend. On October 13, 2015, Mr. Robbins attempted to exercise that sixth-year option. But, the County Commission claimed that the option was not valid and terminated his employment effective January 31, 2016.

Mr. Robbins sued the Commission for breach of contract and I was retained to represent the Commission. In the trial court, I moved to dismiss the complaint because Alabama’s general law for County Engineers provides that counties can only contract with engineers for five-year terms, and Mr. Robbins’ option created an invalid six-year contract. See Ala. Code § 11-6-1. Mr. Robbins countered that the Alabama Legislature passed a special statute for the Cleburne County Engineer under which the engineer must be employed “at the pleasure” of the Commission. See Ala. Code § 45-15-130.01. He argued that the County’s “pleasure” was to employ him for six years.

I was able to convince the trial court that the phrase “at the pleasure” actually meant that Mr. Robbins must be an “at will” employee. As a result, any written contract for a specific term violated the statutory mandate that Mr. Robbins be employed “at will.” After the trial court granted my motion to dismiss, Mr. Robbins appealed to the Alabama Supreme Court.

The Alabama Supreme Court ordered the parties to appear for oral argument in Montgomery on December 4, 2019. During that argument, some of the Justices appeared concerned that Cleburne County’s local statute might be an invalid, unconstitutional variance from Alabama’s general statute on County Engineers. I argued that, regardless of the constitutionality of the local act, my client should win. If the local act was unconstitutional, then Alabama’s general five-year limit on engineer contracts controlled and Mr. Robbins’ lawsuit for a sixth-year was impermissible. If the local act was valid, then the phrase “at the pleasure” required “at will” employment — invalidating the contract and the breach of contract lawsuit.

In its decision, the Supreme Court effectively adopted that argument. Instead of ruling on the constitutionality of the local act, the Court found that the Cleburne County Commission was entitled to prevail under either statute.

The Robbins case is also important for two reasons. First, Alabama’s appellate courts had not previously ruled that an option-year for a contract would be considered an extra year for purposes of statutes limiting the length of government contracts. There were several opinions from the Alabama Attorney General supporting that proposition. But, Robbins clearly holds that an option year is an impermissible extension. Second, the Court clearly found that the phrase “at the pleasure” mandates “at will” employment. I relied upon an older case from the Alabama Court of Appeals and more-recent cases from other states to support that proposition. The Robbins case is the first decision from the Alabama Supreme Court on the issue.

Now that I’ve celebrated, it’s time to get back to representing other clients.

Employment Contracts and “Cause” Provisions

April 22, 2019Robert C. Lockwood

cause contract termination Alabama Employment law — Employers can terminate employment contracts, even if those contracts do not have a termination “for cause” provision

An employer can terminate an employment contract — even if the contract does not have a termination “for cause” provision. That’s the lesson to be learned from the Alabama Supreme Court’s recent decision in Shoals Extrusion, LLC v. Beal, No. 1170673, 2019 WL 1748138 (Ala. Apr. 19, 2019).

Shoals Extrusion, LLC entered into an employment contract with Lonnie Beal to serve as its plant manager. The agreement provided that Beal would work “40 plus” hours per week on the “days and the time” set by Shoals Extrusion. If Shoals Extrusion terminated Beal’s employment during that term, he was promised a severance package of one-year’s pay and benefits. While most employment contracts have provisions that permit termination of an employee “for cause,” Shoals Extrusion’s agreement did not.

By July 2015, there were disputes regarding Beal’s work schedule. Shoals Extrusion’s plant initially worked a schedule beginning at 7:00 a.m., but changed its start time to 6:00 a.m. Nevertheless, Beal refused to change his schedule and continued to arrive for work at 7:00 a.m. Additionally, Shoals Extrusion’s owners asked Beal to work more than 40 hours per week, but he refused unless they gave him an ownership interest. The owners also discovered that Beal was telling individuals in the industry that Shoals Extrusion was having financial problems.

Shoals Extrusion decided to terminate Beal’s employment. On November 23, 2015, the owners met with Beal and asked him to sign a “severance and general release agreement.” Under that agreement, Beal would receive one-month of pay and release all further rights or claims related to Shoals Extrusion. Beal declined to sign the agreement. Shoals Extrusion terminated his employment and refused to make the severance payment promised in his employment contract.

Beal sued Shoals Extrusion for breach of contract — arguing that he was entitled to one year’s pay and benefits. Soon after filing suit, Beal asked the trial court to grant summary judgment in his favor — essentially finding that Beal should win as a matter of law and without a trial. The trial court granted that motion and Shoals Extrusion appealed.

The Alabama Supreme Court reversed and found that summary judgment was improper. In doing so, the Court was forced to distinguish an earlier case, Southern Medical Health Sys., Inc. v. Vaughn, 669 So.2d 98 (Ala. 1995). In Vaughn, the Supreme Court ruled that an employer could not terminate a contract “for cause” if there was no provision of the agreement permitting “for cause” terminations. Logically, Beal argued that he could not be fired for a “cause” (refusing to work at 6:00 or work more hours) if his employment contract did not have a “for cause” provision as required by Vaughn.

Nevertheless, the Court rejected that argument and adopted Shoals Extrusion’s argument. Shoals Extrusion argued that it did not terminate Beal “for cause.” Instead, it claimed that Beal breached his employment agreement first, and his breach excused Shoals Extrusion from any further performance — including payment of severance. The Supreme Court found that “[w]hether Beal breached the employment agreement and whether that breach was material to the contract are ultimately questions for the fact-finder that cannot be resolved at the summary judgment stage.” In short, the Court found that Beal’s case had to be decided at trial.

Shoals Extrusion is a good case for Alabama employers, because it gives them an argument for terminating an employment agreement — even in the absence of a “for cause” termination provision.

Warning: “Offer Letters” Are Employment Contracts!

September 26, 2018Robert C. Lockwood

Offer letters employment contract Alabama Employment Law — Employers should exercise caution when providing new employees with offer letters

Many of my clients use “offer letters” to hire new employees. Those letters generally inform a new employee about the job they are being offered and the salary they will be paid. And, those letters ask the employee to sign that they accept the job. Frequently, my clients are surprised when I tell them that their “offer letter” is a binding employment contract. “It’s only a letter! We weren’t signing a contract! There’s no details.” But, one of the earliest lessons that law students learn is that a contract is created by “offer” and “acceptance.” That’s exactly what an “offer letter” is.

The creation of an employment contract by an offer letter was one the key issues in Physiotherapy Associates, Inc. v. Deloach, No. 1:16-cv-02014-ACA, 0218 WL 4409349 (N.D. Ala. Sep. 17, 2018). In that case, James Doug DeLoach signed an offer letter that contained extensive non-competition and non-solicitation requirements: If DeLoach left his employer, he couldn’t compete or solicit employees. But, the offer letter said that it was “not intended to create a contract of employment.”

Mr. DeLoach left his employment and went to work for a competitor. When he was sued for breaching an employment contract, he argued that the offer letter meant what it said — it wasn’t an enforceable employment contract. United States District court Judge Annemarie Carney Axon was not persuaded. She found that the non-competition and non-solicitation provisions were enforceable. Ultimately, Judge Axon ruled in Mr. DeLoach’s favor. She essentially found that the non-competition and non-solicitation provisions were poorly-drafted. And, Mr. DeLoach did not breach either of those provisions — as drafted.

Thus, the DeLoach case provides at least two lessons for Alabama employers. First, if you use offer letters, I strongly recommend that you include language in the letter informing the employee that they will be an “at will” employee. Otherwise, there is some potential to create an employment contract for a specific term. Second, carefully review the language of your offer letters. Don’t just assume that “form” language is going to apply to this employee. If you have provisions that you want to enforce later, a reviewing Judge will hold your strictly to your own language.

An Employee’s Insistence on Enforcing “Rules” Can Be Insubordination.

August 20, 2018Robert C. Lockwood

Rules insubordination Alabama Employment Law 11th Circuit insubordinate — Employees who disregard workplace directives in favor of their interpretation of the “rules” may be insubordinate.

I frequently encounter employees who think that workplace rules make them bulletproof. Usually, these employees have memorized their employer’s handbook and know it better than the Human Resources staff. They then insist that any workplace action must be taken in compliance with the “rules.” And, they think that any action which contradicts the “rules” must be invalid. One employee recently learned the hard way that his insistence upon the “rules” amounted to insubordination, which justified termination of his employment. Veasy v. Sheriff of Palm Beach County, No. 17-13174, 2018 WL 3868674 (11th Cir. Aug. 14, 2018).

Wilbur Veasy was employed as a corrections officer by the Palm Beach County Sheriff for 25 years. Over the course of those 25 years, he was written-up for insubordination six times. He is African-American. On February 5, 2013, Mr. Veasy was directed to submit to a random urine drug screen. In accordance with written policy, Mr. Veasy appeared at the Sheriff’s Internal Affairs Office to submit his urine sample. But, despite the language of the written policy, the Sheriff’s Office had not accepted urine samples at Internal Affairs for more than four (4) years. Thus, upon arrival, Mr. Veasy was directed to drive his personal car to a third-party contractor’s office to submit a sample.

Mr. Veasy refused. He insisted that the Sheriff Department’s policy did not require him to drive his personal vehicle to a testing facility. Mr. Veasy requested an “official vehicle” to drive to the testing facility. A sergeant denied Mr. Veasy’s request, and ordered that Mr. Veasy drive to the testing facility. When Mr. Veasy refused, the matter was referred to the Sheriff. The Sheriff gave Mr. Veasy two options: either drive to the test site in his personal vehicle or be placed on administrative leave. Mr. Veasy responded that his “2007 red four door Tacoma is not going,” and the Sheriff placed him on administrative leave. Mr. Veasy was ultimately terminated for refusing to comply with a direct order and for refusing to submit to a random drug screen.

Mr. Veasy sued for race discrimination. The Eleventh Circuit assumed that he could prove a basic (prima facie) case of discrimination. But, Mr. Veasy could not rebut the Sheriff’s legitimate nondiscriminatory reason for termination: insubordination. Mr. Veasy tried to argue that he had not actually violated a work rule. After all, the Sheriff’s written policy said to arrive at Internal Affairs ready to submit a sample, and he did just that. The Eleventh Circuit was not persuaded. The issue was not whether Mr. Veasy violated the written rule, but whether he was insubordinate when he refused two direct orders to travel to the third-party contractor’s office. The Eleventh Circuit found he was insubordinate, and affirmed dismissal of his discrimination claim.

Overzealous employers might be tempted to read Veazy to permit them to terminate an employee for insubordination any time the employee refuses a direct order. To quote Lee Corso: “Not so fast, my friend.” There are numerous factors that need to be considered before any employee is terminated. Probably, the most important factor is treatment of other similar employees who refuse direct orders. So, if an employer only terminates insubordinate employees in a protected class, then the termination might be impermissible. Veazy is more of a cautionary tale for employees to be careful about their insistence on work rules.

3 Alabama Laws That Provide Protection For Whistleblowers

March 28, 2016Robert C. Lockwood

Many employees like to complain about their work environment. In large part, Alabama law provides no protections to employees who complain about work conditions, because Alabama is an employment-at-will state. This means that, in the absence of an employment contract, employees can generally be fired for a good reason, a bad reason or no reason at all.

Nevertheless, Alabama provides at least three statutes which limit the ability of employers to terminate employees who make reports about work conditions:

Alabama Code Section 25-5-11.1 prevents employers from terminating employees who file written notices of safety violations.
Alabama Code Section 25-8-57 protects employees who oppose or report violations of Alabama’s Child Labor Laws.
Alabama Code Section 36-26A-3 prohibits adverse actions against a limited set of governmental employees who report wrongdoing by their supervisors.

While Alabama law provides very little protection for employees, there are numerous federal laws that do protect employees. Therefore, you should consult your attorney before disciplining an employee who complains about their work environment.

Alabama Supreme Court Allows “At Will” Employee to Sue Based Upon Promises Made During Interview Process.

March 18, 2016Robert C. Lockwood

Fraud

The Alabama Supreme Court recently upheld an award of $600,000 in compensatory damages to an “at will” employee who sued his employer for fraud. See Farmers Insurance Exchange v. Morris, No. 1121091, 2016 WL 661671 (Ala. Feb. 12, 2016). In Morris, the employee was working as an independent insurance agent at his father’s insurance agency. He wanted to continue working for his father, but also join Farmers Insurance Company as an agent. He repeatedly asked Farmers representatives if he could work for both his father and Farmers. He was told that such a relationship was permissible. Although there was conflicting evidence, the jury found that the employee was ultimately terminated by Farmers because of a conflict of interest policy which actually prohibited the employee from working for both Farmers and his father.

The employee argued that Farmers fraudulently induced him into giving up business with his father’s agency — business which Farmers retained after termination. A crucial element of fraud is detrimental reliance — the recipient of a promise takes detrimental action in reliance on the promise. In this case, the employee claimed that he detrimentally relied upon Farmers’ promise that there was no conflict of interest.

Farmers argued that the employee was an “at will” employee of Farmers, who could be terminated from employment at any time. As a result, he could not rely upon his belief that he would continue to work at Farmers and receive payment from Farmers in the future. The Alabama Supreme Court rejected that argument: “When an employee leaves one job for another based on a representation by the new employer regarding the new job that is not true at the time it is made, the new employer cannot hide behind the fact that Alabama law enforces or reads into the new employment contract an ‘at will’ clause to avoid the consequences of its fraud.”

The key lesson for employers is to attempt to learn all of the promises made to potential employees in the course of interviews. This can be a difficult task, but the key is documentation. In the course of interviews, executives need to make comprehensive notes of the questions asked by applicants and the answers given by the executive. With that documentation, employers can better defend potential claims for fraud based upon the interview process.