We have written a lot about the pluses and minuses of requiring arbitration of employment disputes. The arithmetic is complicated and employers come to different sums.
We do want to point out a more limited use of required arbitration where the advantages may be clearer. Many employers are considering or have in effect policies requiring employees to vaccinate against COVID-19. Except perhaps in rare cases, federal and state anti-discrimination laws require employers to consider medical or religious objections to vaccination. Such exemption requests can be difficult to evaluate. In particular, religious objections often require employers to distinguish VAX objection based on sincere religious belief from VAX objection based on personal/political belief. Applying the religious exemption too loosely undermines the vaccination requirement, but applying it rigorously can lead to expensive litigation, with the employer’s rejection of an exemption request being second-guessed by a jury.
Requiring employees to arbitrate disputes about vaccination exemption requests might be helpful.
In unionized work environments, such an arbitration requirement can be negotiated with the union. The Supreme Court has ruled that unions can negotiate agreements that employees must arbitrate their individual statutory claims. Given that labor and management must bargain at least over the effects of a vaccination mandate (and in some cases the decision to mandate), it seems a natural component of any such agreement to avoid both parties being hauled into court. There are a number of efficient approaches to dispute resolution, but we’d suggest as a starting point a standing arbitrator who is or can be knowledgeable about the narrow legal issue and who can produce consistent, binding answers.
Such arbitration would require union agreement but many unions would see such agreement as an escape from the dilemma they face over mandatory vaccination. Almost every union that has announced a public position has strongly recommended vaccination but with the caveat that employers should respect “personal choice.” Of course, they realize that one union member’s personal choice may endanger another member’s health, and might well see the suggested approach as a solution to the problem.
Non-unionized employers who do not already have arbitration agreements covering employment disputes could include an arbitration requirement in the vaccination policy and confirm it in an exemption request form. Properly rolled out, the arbitration requirement should be enforceable, governed for most employers by the pro-arbitration Federal Arbitration Act. Employers with very large work forces should beware the risk of mass arbitration. But, for many employers, the process to determine the validity of a request for a vaccine exemption could be limited to keep the expense manageable.
Of course, just as there are vaccination objectors, there may also be vaccination-arbitration objectors. While predicting human behavior in the Age of COVID is difficult, we suspect that terminating an employee who refuses to place the sincerity or validity of an objection to vaccination before a neutral arbitrator can be defended on relatively high ground.