For over a year, the COVID-19 pandemic has kept your doors closed and most of your workforce at home. Now that vaccines are available, you email your employees and tell them that those who are vaccinated can return to the office; unvaccinated employees should continue working at home. You assign one of your vaccinated employees, Victoria, an out-of-town client meeting that makes her career. You instruct Richard, who has refused his shot, to stay home and perform administrative tasks. A few weeks later, Richard sues you for "vaccination discrimination." Can you really be sued for trying to keep your employees safe from COVID-19?
As you may know, the Equal Employment Opportunity Commission (EEOC) has blessed employer-mandated COVID-19 vaccination policies, subject to exceptions for individuals with disabilities and certain religious objections. For practical reasons, however, many employers are allowing their employees to decide for themselves whether to receive the vaccine, or are choosing to adopt a voluntary vaccination incentive program. If your business has not adopted a vaccination mandate, your workplace will soon be divided into three camps: the vaccinated, the unvaccinated (including some who refuse to be vaccinated for reasons that drip with conspiratorial leanings), and those who cannot be vaccinated for medical or religious reasons.
Faced with this reality, many employers wonder whether they can or should treat their vaccinated and unvaccinated employees differently. Can we require that vaccinated employees work from the office and unvaccinated employees stay home? Can we assign client-facing opportunities to vaccinated employees alone? Can I elect to send a vaccinated employee to corporate headquarters in another state, while preventing an unvaccinated employee from traveling there?
Currently, vaccination status is not a protected characteristic under federal anti-discrimination law. However, as noted above, employees may remain unvaccinated for reasons that are legally protected, including religion, pregnancy, or disability status. Legal risk arises when employees who are unable to receive a vaccine for a legally protected reason are treated less favorably than other employees who are able to get the vaccine. If Vaccinated Victoria is permitted to work from the office in an in-person, client-facing role, and she generally receives more prestigious assignments than Refusing Richard, who must work from home, this could give rise to claims of unfair treatment. If Refusing Richard is unvaccinated for a protected reason, this difference in treatment could spawn a claim for vaccine discrimination.
State lawmakers across the country are looking beyond the protections afforded under current anti-discrimination laws and have proposed legislation that would allow any unvaccinated employees—regardless of protected status—to bring claims against employers who treat them differently. For example, proposed legislation in Iowa would allow Refusing Richard to sue if he is subjected to discrimination in compensation or the terms or conditions of employment for his unwillingness to receive a vaccine. Kentucky's proposed law would explicitly prevent an employer from limiting or segregating him in a way that would deprive him of "employment opportunities" because he declines a vaccination. Similar laws have been proposed in Rhode Island, Pennsylvania, and Texas.
Differing treatment for the unvaccinated could also pose issues for employees subject to employment agreements. Let's assume that Refusing Richard's contract with your company sets forth his job duties and provides that any significant alteration to those duties amounts to a termination of his employment, with an obligation to pay him severance. In that case, your refusal to allow Richard to perform those duties because he is unvaccinated could result in both a monetary loss and the loss of a skilled member of your workforce.
Employees discussing vaccination among themselves is another potential liability for an employer. If employees are questioning one another about why they have or have not received a vaccine, they could be probing into unwelcome, protected areas, such as age, disability status, pregnancy status, or religion. For example, comments implying that Refusing Richard should go get vaccinated due to his age might give rise to complaints about unfair treatment based on the same protected characteristic. Comments that Vaccinated Victoria had early access to a shot even though she "only has asthma" could be similarly problematic. This is particularly true if a supervisor is the one making these comments.
Given the lack of administrative guidance in this area, we urge employers to balance the risk of discrimination allegations against the benefits associated with decreasing restrictions for vaccinated employees. For example, to prevent inadvertent unfair treatment, employers may find it best if direct supervisors do not know the vaccination status of their employees. Employers should work with legal counsel and should continue to monitor guidance from the CDC, EEOC, and OSHA when developing or modifying workplace policies. This guidance will likely evolve as we learn more about the COVID-19 vaccines and as more people receive vaccinations.
We will continue to monitor these and other relevant changes in legislation. If you are planning to reopen your office or have questions about employee vaccination or employer liability, please contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.