Labor & Employment Law Daily Wrap Up, PRIVACY—S.D. Ala.: Employee who refused COVID-19 vaccine cannot advance invasion of privacy claim, (Jan 6, 2025)

By Todd Harrison, J.D.

Although the employer’s policy of requiring unvaccinated workers to wear masks could cause others to assume the employee was unvaccinated, the public interest outweighed any potential harm to the employee.

Granting summary judgment against the claims of a former employee who alleged that his employer was negligent in the way it handled the COVID pandemic and that it had invaded his privacy by inquiring about his vaccination status, a federal district court in Alabama determined that the public interest in requiring unvaccinated employees to wear masks outweighed any harm the employee may have suffered in his coworkers being able to infer his vaccination status. Initially, the employee had sought a religious exemption. However, the employer determined that any religious accommodation would pose an undue burden and denied all such requests made by its employees (Franklin v. Austal USA, LLC, No. 1:23-cv-00040-KD-C (S.D. Ala. Jan. 3, 2025)).

The employer is a federal contractor that builds ships for the U.S. Navy. The employee was hired to work as an electrician and a fiber optics technician, a position that required him to work regularly with others on his team or his crew.

Vaccine mandate. Just prior to President Biden’s Executive Order establishing that all federal contractor employees be vaccinated, the employer implemented a vaccine policy requiring all employees to receive the Johnson & Johnson/Janssen vaccine or their first dose of the Pfizer or Moderna vaccine by October 27, 2021. The employer informed its workers that they could request a medical or religious exemption from the requirement.

Religious exemption. When it came to requests for religious exemptions, the employer did not question whether an employee’s beliefs were sincerely held, opting instead to proceed directly to the undue hardship analysis. The employee was one of nearly 160 workers who requested a religious exemption.

In assessing the feasibility of requiring bi-weekly testing of approximately 160 unvaccinated workers, the employer estimated approximate costs to exceed $1 million annually. Considering this estimate along with administrative costs and the potential threat to employee health, the employer determined that such a program would pose an undue burden and that there was no other feasible method to accommodate religious exemptions. As such, it denied all religious exemption requests.

Termination. On October 27, 2021, the employee was terminated for failure to comply with the vaccine mandate. He subsequently filed this lawsuit alleging that the employer was negligent in the way it handled the pandemic and that it had invaded his privacy by inquiring about his vaccination status. He did not allege a Title VII reasonable accommodation claim.

Negligent handling. First, the employee conceded that his negligence claim was “due to be dismissed.” Accordingly, the court granted summary judgement to the employer against this claim.

Invasion of privacy. Turning to the employee’s invasion of privacy claim, the employee stated a cause of action for the public disclosure of private information. He contended that the employer publicly disclosed his private information regarding his vaccination status in two ways. First, the employer required unvaccinated—but not vaccinated—employees to wear masks. Second, the employer only allowed vaccinated employees to wear stickers indicating they had received the vaccine.

Public disclosure of private information is an actionable tort when the matter publicized is of a kind that: (1) would be highly offensive to a reasonable person; and (2) is not a legitimate matter of public concern. The employer argued that the employee’s public disclosure theory regarding his vaccination status failed on both elements.

Legitimate reason? To support his claim, the employee correctly contended that there were material issues of fact concerning whether he openly discussed his vaccination status with his coworkers. Thus, the issue was whether the employer had a legitimate reason for disclosing the employee’s vaccination status.

According to the employee, the employer did not have a legitimate reason in knowing his vaccination status for two reasons. First, the employee quoted a CDC article which stated that “[v]accines are not always effective at preventing infection....” and clarifies that the “purpose of the vaccine” is to provide sustained protection against disease and death. Second, the employee contended that the employer’s policy of only requiring unvaccinated individuals to weak a mask was contrary to OSHA guidance, pointing to a FAQ page from OSHA’s website which stated, “In areas with substantial or high transmission, employers should provide face coverings for all workers, as appropriate, regardless of vaccination status.”

For the same reasons, the employee argued that the employer had no legitimate interest in knowing who was required to wear a mask through its sticker policy. The court was unpersuaded by these arguments.

Policy at the time. With regard to the employee’s contentions surrounding the employer’s mask and sticker policy, the CDC article quoted by the employee was published in October 2023. No date was associated with the OSHA FAQ page. As such, these sources did not prove that the employer lacked a legitimate interest in its mask and sticker policy at the time in question, explained the court. More importantly, continued the court, these sources did not support the employee’s arguments.

Although the OSHA FAQs guided employers to provide masks for all workers regardless of vaccination status, they also noted that employers “can suggest or require” that: (1) unvaccinated individuals wear masks in public workplaces; and (2) that all individuals wear masks in public, indoor settings of high transmission. This did not lend credence to the employee’s claim that employers lacked a legitimate interest in requiring unvaccinated workers to wear masks.

In addition, the latter half of the CDC article referenced by the employee explained that “there is extensive data showing that these vaccines prevent severe illness and protect the public’s health.”

Public concern? As to whether the employer’s mask and sticker policy involved matters of legitimate public concern, the court was required to balance the competing interests of the employer and the employee. On one hand, the employer had an interest in maintaining the health and safety of its workforce. On the other, the employee desired to remain unvaccinated and to keep his vaccination status private.

“At the time, the prevention and spread of COVID-19 was, as a matter of law, a matter of public concern,” said the court. The employer relied on objective data to determine that vaccinations and masking would protect its interests and the interests of its employees.

The potential harm to the employee—the fact that other workers could infer that he was unvaccinated—did not outweigh the public interest in requiring unvaccinated workers to wear masks, concluded the court. Accordingly, summary judgment was granted against the employee’s invasion of privacy claim.

The case is No. 1:23-cv-00040-KD-C.

Judge: DuBose, K.

Attorneys: Brian Anton Dasinger (The Law Offices of Brian A. Dasinger) for Guy E. Franklin. Kristin Taylor Parsons (Phelps Dunbar) for Austal USA, LLC.

Companies: Austal USA, LLC

Cases: Privacy Discharge IndividualRights StateLawClaims TortClaims AlabamaNews GCNNews