In his oral pronouncement today, Judge Cooper held that the Executive Order issued by Florida Governor Ron DeSantis could not be enforced because the Order was in impermissible conflict with Florida law. Under the newly-enacted Parents’ Bill of Rights, parents have the ability to challenge school policies that affect their children; however, school boards retain the right to make policy decisions for the safety of students, so long as those decisions are determined to be “reasonable.” Since the school boards’ mandatory mask policies were consistent with CDC guidelines, the policies were “reasonable” and, therefore, lawful. Accordingly, the Executive Order by the Governor that cut funding based on these decisions by the school boards was illegal and cannot be enforced.
In determining that the school boards’ actions complied with the Parents’ Bill of Rights, the Court discussed balancing the interests of the school boards against the interests of the parents. But the balancing of interests analysis applies in the employment law setting, as well. In disability discrimination cases, courts look at whether a requested accommodation creates an undue hardship on the employer. This is basically a balancing of the interests of the employee (who should be permitted to work with an accommodation) and the employer (who needs to maintain a functioning business).
This balancing of interests is very likely to be a point of discussion in the near future as employers begin to mandate masks and vaccines. Where is the line between an employer’s need to ensure a safe workplace and an employee’s need to accommodate a disability that may prohibit vaccination? Or what if an employee claims to have a “sincerely held” religious belief that vaccines are not allowed? What if an employee claims that his or her First Amendment rights are being violated by being required to wear a mask?
The answer to the first question is relatively straightforward. I would suggest that, as to the issue of a disability, a prudent choice would be to rely on medical documentation provided by the employee and permit the accommodation.
The second and third questions require a more nuanced approach. What could “reasonably” be considered a “sincerely held” religious belief as applies to COVID safety measures? Does it make a difference if there is a tax-exempt religious organization behind the belief? Courts have grappled with issues of religion-based accommodations for some time, including questions of what a “sincerely held” religious belief is or what types of accommodations are reasonable in comparison to the employer’s needs. The EEOC has put out guidance on the subject. Nevertheless, employers will be making judgment calls when it comes to religious accommodations. It will be interesting to see how many people begin to exhibit “sincerely held” religious beliefs about masks and vaccines in the coming months and years, and how the courts address the balancing of interests in that context.
As to the third issue (First Amendment rights), if you’re not working for the government, this does not apply to you. It is a common misperception that First Amendment rights are guaranteed to individuals by private employers or that those rights are unlimited. Alas, there have been plenty of cases over the years defining the boundaries of First Amendment freedoms. The core of all of those cases is a balancing of interests: namely, the interests of the government in restricting the freedom guaranteed by the United States Constitution and the interests of the individual citizen. I think we’re going to see cases in the future about whether choosing not to wear a mask or not obtain a vaccine tips the scales in favor of employees of the government or in favor of the governmental entity. If today’s ruling is an indicator on the subject, my money is on the latter.
Click on this image to be taken to the lawsuit filed as to the mandatory mask mandate.