A recent Tennessee Supreme Court decision has addressed a matter of first impression after years of contentious debate regarding employer COVID-19 vaccination policies for employees. Heather Smith (Smith) filed a lawsuit against BlueCross BlueShield (BlueCross) after BlueCross terminated her at-will employment.
Smith was terminated after sending the Tennessee General Assembly emails expressing dissatisfaction with BlueCross' COVID-19 employee vaccination policy. Smith sued BlueCross for common law retaliatory discharge. She claimed retaliatory discharge for exercising her right to "petition," that is the right of Tennessee citizens to "instruct their representatives, and to apply to those invested with the powers of government for redress of grievances" under Article I, Section 23 of the Tennessee Constitution. Smith requested the court recognize termination in retaliation for exercising the right to petition as falling under the public policy exception to Tennessee's at-will employment doctrine.
Public Policy Exception to At-Will Employment
In Tennessee, the doctrine of at-will employment maintains that employment for an indefinite period of time may be terminated by either the employer or employee at any time and for any, or no, reason at all. Tennessee recognizes a narrow exception to this doctrine, known as the common law tort of retaliatory discharge.
Under this exception an employee must show the following:
- An employment-at-will relationship existed.
- That the employee was discharged.
- That the discharge occurred because the employee attempted to exercise a statutory or constitutional right or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision.
- That a substantial factor in the employer's decision to discharge the employee was because the employee exercised a protected right or because the employee complied with clear public policy.
The court found Smith's arguments to support recognition of the right to petition under the public policy exception to be unconvincing. The court determined that while the text of Article I, Section 23 did not mandate a holding that the right to be free from restraint to petition was unenforceable against private entities, the hundreds of years of history behind the constitutional right did. As a result, the court held that Article I, Section 23 of the Tennessee Constitution was not enforceable against private entities.
Retaliatory Discharge and Constitutional Rights
To prove the common law tort of retaliatory discharge, an employee must show more than the exercise of a constitutional right. If a constitutional provision only constrains the government, the court stated, "it would be anomalous to conclude that an employer violated "public policy" by terminating an employee for exercising that constitutional right." (19-20). Thus, BlueCross did not violate any "clear public policy" evidenced by a constitutional provision when it terminated Smith for exercising her right to petition under the Tennessee Constitution.
The court also reiterated that retaliatory discharge is an important, but very limited exception to the employment-at-will doctrine and that the exception cannot be allowed to consume the doctrine. So, while employees have the constitutional right to petition the government a Tennessee employer has no obligation to continue the employment relationship with its employee after the employee does so.
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