When employees speak up on matters of public health and vaccines in their free time, those who do not like the speech may retaliate by complaining to their employers, who may be tempted – or feel forced – to act against the employee. But employers should not, and some types of employers – public employers – are likely barred from doing so.
This post considers mostly employees in public institutions – department of health, teaching hospitals, or universities – because these employees have legal protection against sanctions – an employer is likely legally prohibited from acting against them because of speech on matters of public health and vaccines in their free time.
However, the points made about defamation and the policy considerations also apply to private employers, those who can fire employees at will, at least when the employees provide mostly accurate, fact-based information.
These issues can come up in a variety of contexts, some of which the employer may appreciate more than others. One situation is when an employee working for a public institution spends part of his personal time commenting on public health and vaccines issues and informing the public through a personal blog, on which his position is mentioned, or by commenting on social media, Facebook or Twitter.
The employee provides information, corrects misconceptions, and criticizes those offering bad advice or factually inaccurate information, sometimes with strong language. A person so criticized contacts the public institution and threatens to sue for defamation if the blogging does not stop and the statements are not retracted, or if the employee is not otherwise dealt with.
Or, for example, an employee makes a joke about a public health issue – in good or bad taste – in her personal time. People offended complain to the employer, either just criticizing the employee or threatening legal action. In both cases, employers should not take measures against the employee.
First, in most circumstances, there would almost certainly be no defamation case here. Second, limits created by the First Amendment on the ability of public employers (though not private ones) to fire an employee for their speech likely apply here. Finally, there are public benefits from allowing the employee to speak in this manner.Read More »Public health and vaccines commentaries – employment repercussions