Vaccine discrimination in the workplace: What businesses need to know now

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Let’s talk about so-called vaccine discrimination. As an employment lawyer, the two questions I get asked the most these days are: (1) can we ask employees whether they’ve been vaccinated, and (2) can we require non-vaccinated employees to wear masks in the workplace (or a variant of that question, is it discriminatory to require non-vaccinated employees to wear masks while not imposing similar restrictions for vaccinated  employees). The answer to the first question is, yes, although an employer must handle the information received carefully as it is confidential. Answering the second question (or attempting to anyway), is the focus of this article.

Vaccine status is not a protected trait. This means that employers are generally free to treat vaccinated employees differently from unvaccinated employees without legal consequences. I say “generally” because there are areas where an employee’s vaccine status and legally protected trait(s) may intersect. The EEOC recognized the potential for this confluence in 2012 when it published its now prophetic discussion letter, Infection Control Practices, Vaccination Requirements, and Reasonable Accommodation Generally.

There, the EEOC said that “[w]hile an employer covered by [federal EEO laws] may not impose [mask wearing or safety] practices for discriminatory or retaliatory reasons, it may do so for legitimate, non-discriminatory and non-retaliatory reasons. Whether the employer's motivation for imposing additional infection control measures was discriminatory or retaliatory would turn on the facts of a given case.” Thus, requiring unvaccinated employees to practice COVID-19 safety (such as masking wearing and social distancing) is not itself discriminatory, but those measures may become problematic when an employer uses them to discriminate.

A blatant example is requiring only those employees with religious objections to the vaccine to practice social distancing. But these situations are rarely so straightforward and become more complicated as legitimate workplace needs arise. For example, employers may rightly be wondering whether they can assign projects based on someone’s vaccine status. In some cases, the answer is, yes, particularly when an employee objects to the vaccine on philosophical grounds only. Disparate assignments may hint at a discriminatory animus, however, when an accommodation is available to an unvaccinated employee who qualifies for an accommodation because of his religion or disability. As the EEOC said, much depends on the particular facts of each situation.

Remember, words matter. Telling employees that unvaccinated employees must still wear masks so “everyone knows who is vaccinated and who is unvaccinated” treads perilously close to discriminatory tagging. Some employees may not be vaccinated for sincerely held religious beliefs or because of a contraindication. Tagging or labeling those employees for their protected trait runs afoul of federal EEO laws. To be clear, based on current guidance, it is permissible to require unvaccinated employees to continue practicing COVID-19 safety for legitimate safety reasons. My point is that employers must exercise care in how policies are created, announced, and enforced. Perhaps more than ever, it is vital for businesses to keep an eye on CDC guidance for unvaccinated employees and/or for businesses with a mix of vaccinated and unvaccinated employees and to adjust their policies accordingly.

Remember too that employers may ask whether an employee has been vaccinated or intends to receive the vaccine. Asking why an employee has not been vaccinated, however, triggers certain obligations under the ADA and can be asked only if the inquiry is “job related and consistent with a business necessity.” This is because the question tends to elicit information about a person’s potential disabilities.

For its part, OSHA has promulgated guidance encouraging businesses not to distinguish between employees based on their vaccine status. According to OSHA, “workers who are vaccinated must continue to follow protective measures.” A few things to know about OSHA’s statement here.

First, OSHA published its guidance, called the “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” on January 29, 2021. Much has changed since then. OSHA recently announced that it would revisit the Protecting Workers Guidance based on the CDC’s recent announcements. Second, aside from policies that may trigger the “general duty” clause under the Occupational Safety and Health Act, the Protecting Workers Guidance is just that, guidance. Employers are not bound by it. Finally, OSHA is not tasked with enforcing anti-discrimination laws; that is the EEOC’s territory. OSHA’s guidance is very important, but it is also still evolving.

In all likelihood, the EEOC will publish updated technical guidance on vaccine discrimination shortly (similar to the guidance it published on May 28, 2021, regarding vaccine incentives). I expect, without having the benefit of a crystal ball, that new guidance from the EEOC will build upon its infection control discussion letter from 2012 and what’s discussed in this post.

These are complicated questions in unprecedented times. Before changing policies or addressing questions of so-called “vaccine discrimination,” businesses would do well to consult with their labor and employment counsel.

Brian is a seasoned litigator and counselor at Sheehan Phinney in Portsmouth, New Hampshire, where he works in the firm’s litigation and labor and employment departments. In the labor and employment field particularly, Brian counsels and represents companies through all manner of complexities, including claims involving discrimination, retaliation, and wage and hour violations, questions involving employee management, executive contracts, employee mobility, and legal compliance. Brian’s clients range from VC backed tech companies in Boston, to small rum distilleries on the Seacoast, and everything in between. Brian has written and lectured on legal topics throughout New England and is never unimpressed by the complex issues facing employers, businesses, and individuals on a daily basis.

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While the above information may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.