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that required larger employers to put policies and procedures in place to ensure employees get vaccinated against COVID-19 or undergo weekly testing.
Does that mean employers do not have to worry about taking steps to protect workers against COVID? Absolutely not. Although OSHA announced it was withdrawing the shot-or-test rule in light of the Supreme Court’s decision, OSHA “strongly encourages vaccination of work- ers against the continuing dangers posed by
“Forced arbitration silences survivors
of sexual assault and harassment. It shields predators instead of holding them accountable and gives corporations a powerful tool to hide abuse and misconduct.”
COVID-19 in the workplace.” The agency also announced it will continue its COVID enforce- ment efforts through the “general duty clause,” which is a catch-all provision that allows OSHA to cite employers for failing to provide a work environment free from recognized hazards.
In order to protect against citations and
fines from OSHA, employers should implement workplace-safety policies aimed at stopping
the spread of COVID. This includes masking requirements consistent with CDC guidance and
protocols that require employees to notify their employer immediately if they test positive for COVID. Finally, if employers want to mandate that employees get vaccinated and boosted, that is perfectly fine, as long as exceptions are made for employees who cannot get vaccinated for medical or religious reasons.
In Massachusetts, New Employee Protection Against Retaliation
Earlier this year, the Massachusetts Supreme Judicial Court (SJC) ruled that employees who contradict negative information in their per- sonnel files may be protected against unlawful retaliation. The case stems from an employee who disagreed with his supervisor’s assessment of his performance issues, so he wrote a lengthy rebuttal to be included in his personnel file. The very same day, he was fired. The employee sued, claiming he was wrongfully discharged for writ- ing a rebuttal to negative comments in his per- sonnel file.
Like the employee in this case, most employ- ees in Massachusetts are employed at will, which means they can be terminated for any reason
(or no reason) as long as the reason does not violate a statute or other established rule of law, such as laws against discrimination. Prior to this recent case, the SJC had recognized a few narrow exceptions to this general rule based on certain public-policy interests, including the assertion of a legally guaranteed right. Under Massachusetts’ Personnel Records Law, employees have the legal right to respond in writing.
While the SJC has been reluctant to limit employment at will, it concluded that the right
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to rebut negative information in a personnel file is of considerable public importance. It relates not just to someone’s current employment, but also their ability to seek other employment. It assists potential employers in making informed hiring decisions, “thereby preventing terminated employees from becoming public charges.” In the SJC’s view, having a complete personnel file — reflecting both sides of an issue — also facili- tates the evaluation of an employer’s compliance with the Commonwealth’s many other employ- ment laws, including those that require timely payment of wages and forbid discrimination in the workplace.
This decision recognizes a new legal claim that a terminated employee can bring in court against their former employer. Obviously, this creates a new source of potential liability for employers. But it also creates a new source of protection for employees, and as a result, it may incentivize employees to exercise their right to file rebuttals more often, especially when their performance has been poor or they have other reasons to suspect that their employment is not secure. This makes it all the more important for employers to be diligent about performance management, as creating a documented record of performance problems (and efforts to address them) before pulling the trigger on termination is the best way to defend against any wrongful- termination claim. u
Marylou Fabbo and John Gannon are attorneys at Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]; mfabbo@ skoler-abbott.com
Melanson specializes in top quality vaulation services coupled with meaningful and valuable business consulting services. Our team consists of both certified valuation analysts (CVAs) and certified public accountants (CPAs) who work closely with you, as well as your legal and banking representatives, on a variety of engagements.
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