BUFFALO, N.Y. — A letter being shared on social media is leading some to suggest that hospitals who had fired unvaccinated workers are now punishing those workers after the fact.
However, a labor attorney whom we spoke with does not believe that to be the case.
The letter appears to have been sent to a nurse who worked at Roswell Park Comprehensive Cancer Center, and who faced termination because they refused the to get a COVID-19 vaccine.
As most know, the state mandated hospital workers to get the shot or lose their jobs. And, after a court ruled their religious exemptions to be non-applicable, thousands of health care workers across the state were fired.
Roswell confirms the letter appears authentic, in that it uses language consistent with those sent to its affected employees as well as by other state-affiliated entities.(see full statement below)
Suddenly You Are Incompetent?
However, beyond clearly stating the employee faces termination for not getting the shot, it also lists as cause for termination “Violation of Regulation” "Misconduct, "Dereliction of Duty," Incompetence," and "Insubordination"
To some, it may appear that the sudden labeling an otherwise exemplary employee as incompetent or insubordinate may be unduly harsh, and well beyond the language necessary to inform them that because of the state rule, and their refusal to abide, they have disqualified themselves for employment and therefore must be let go.
Some others may even view this as punitive or vindictive.
“I wouldn’t throw that label on it," said Harvey Sanders of the Sanders and Sanders law firm, who specializes in labor and employment law.
"Although my practice is to represent employees, and not employers, and certainly while my inclination might be to be sympathetic to the employee in this particular case, I wouldn’t say the letter itself gives me that kind of reaction," Sanders said.
Upon reviewing the letter Sanders quickly noted that the employee in question was represented by a union.
“The first thing that jumps out at me is right in the first paragraph where it makes reference to a union contract," he said, while noting that generally, when it comes to union employees, there is a heightened standard of just cause to terminate.
This creates a situation where the ability to terminate and not violate the union contract, would require an employee to be charged with specific violations.
While he could not say for certain if the specific charges in the letter match those listed as just cause for termination in the contract at hand (and we could not confirm as of Tuesday evening whether it does or not), Sanders said, “If we were to look at that contract those are items that are more than likely contained within that union collective bargaining agreement."
Indeed, Roswell says the language is in accordance with “the procedural requirements of applicable union agreements.”
Job Prospects for Those Terminated
In the meantime, while one might be gravely concerned about their future job prospects after being fired for misconduct, incompetence, or insubordination, Sanders offered insight as to why that might not be as big a worry as one might think.
“It’s pretty rare for former employers, in this case Roswell, to go into the specifics of why an employee was terminated," said Sanders. “More often than not most employers will only confirm dates of employment, job title, or maybe confirm the salary or something like that.”
And while there is no law prohibiting the sharing of additional information, according to Sanders, “a former employer is not going to want to be sued by a former employee if the information they share with a potential employer results in someone not getting a job. That’s the reason why, generally speaking, a lot of human resources folks will advise employers to not share more details about it."
Sanders also noted the letter advised the employee that Roswell was open to negotiating a settlement.
While he can't say for sure what that might entail, he suggests it could perhaps allow the employee to resign, which, while making them ineligible for unemployment, could leave them able to state that they were not fired for being incompetent, insubordinate, or the like.
It also could involve a “plea bargain” of sorts, allowing for the removal of certain charges, such as misconduct, which is one that can often lead to a denial of unemployment benefits.
“My take is that Roswell is doing what they need to do in terms of terminating the employee and in order to terminate the employee within compliance with the collective bargaining agreement they are stating what the justification would be to uphold that termination,” Sanders said.
Full statement from Roswell Park Comprehensive Cancer Center:
"While we cannot address individual personnel matters, any communications we have sent to employees not in compliance with the state vaccine mandate are consistent with those sent by other state-affiliated entities to hundreds of employees, and in accordance with the procedural requirements of applicable union agreements."