Although the distribution of COVID-19 vaccines is still in its early stages, not everyone will want to get the shot, putting employers in the precarious position of having to balance workplace safety against the potential of being hit with discrimination claims.
The two vaccines approved in the U.S. under emergency use authorizations each require two doses. The
U.S. Food and Drug Administration first signed off on an emergency use authorization for
Pfizer and BioNTech's vaccine
in December, and it then approved a vaccine developed by Moderna for
emergency use a short time later.
The U.S.
Census Bureau on Jan. 27 reported the results of a survey it recently conducted about the vaccine, finding that about 8% of American adults, nearly 19 million people, have already received it as of mid-January. But of the approximately 226 million American adults who haven't, the Census Bureau estimated that half of them would "definitely" get the vaccine while about a quarter of the adult population will "probably" get it, and the remaining quarter is either leaning against it or rejecting it outright.
While some employers may see those vaccines and others in the developmental pipeline as potential silver bullets that will allow them to ramp operations back close to normal, cutting against that is the resistance of those who have voiced an aversion to receiving the vaccine, for medical or other reasons. That means employers will likely be confronted with situations in which part of their workforce is inoculated and another part is not.
"If an employee declines an employer mandate for vaccination as a condition to enter into the workplace, employers of course will want to know why but need to be cautious about obtaining too much information about a disability or a religious reason stated by the employee," said Mark Terman, a partner at
Faegre Drinker Biddle & Reath LLP. "Those seem to be the two areas of highest sensitivity for potential discrimination claims if an employer does not reasonably accommodate the worker."
Here, Law360 looks at five missteps employers might take when dealing with their unvaccinated workforce.
Being Too Glib About Medical Needs
Among the most likely types of discrimination claims that could arise when workers decline the shot are because of their religious beliefs or because an underlying disability prohibits it.
To the latter, Allen Shoikhetbrod of
Tully Rinckey PLLC notes that while COVID-19 hasn't itself been categorized as a disability under federal anti-discrimination law, the disease may exacerbate various underlying medical conditions by either the virus or the vaccine.
If a worker has that sort of underlying health condition, there "has to be an interactive process between the employer and the employee" in which the employer considers whether any reasonable accommodation can be extended to the worker, according to Shoikhetbrod, who said that possible options include telework, altering work schedules or shifting a worker to a different position.
"But if it's a position that requires them to have interaction with the public and it does and potentially may cause a health and safety risk, then the employer does have the option to not accommodate them because they can't be accommodated," Shoikhetbrod said. "Accommodations on disability can only be done if someone can perform the essential functions of their job. And if [they] require, for example, interaction with the public on a daily and frequent basis and the employee is not willing to take precautions such as a vaccination, the employer may have the right to terminate or remove that employee under that circumstance."
Employers, however, can land in legal hot water if they are too quick to take action against an employee without first going through that process.
In
recent guidance, the
U.S. Equal Employment Opportunity Commission said that while employers can "exclude" from the workplace an employee who can't get vaccinated because of a disability or religious reason if no reasonable accommodation is possible, those workers can't be "automatically" terminated. The anti-bias watchdog advised employers to instead take the full range of civil rights laws into account when considering such actions.
Jennifer Rubin of
Mintz Levin Cohn Ferris Glovsky and Popeo PC told Law360 that the EEOC "goes through great pains" in its guidance to make clear that employers shouldn't assume they can fire someone over vaccination, and that employers run a heavy risk of being hit with disability-related claims if they don't heed the agency's warning and instead oust a worker too quickly.
"If the employer is aware that the person has rejected vaccination and the employer has concerns that are medical in nature, then you have to go through that reasonable accommodation process that the [
Americans with Disabilities Act 
] requires," Rubin said.
"You still have an obligation to determine whether or not there's an accommodation, which might include working from home, might include working in a different part of the facility," Rubin added. "There are a lot of different ways you can accommodate somebody."
Shoikhetbrod said that issues surrounding potential disability bias underscore the importance of why employers should have a clear policy in place for how they approach unvaccinated workers whose job requires them to be physically present. Not having one, he said, is "a concern" because it potentially puts other workers and customers at risk.
"Whatever opposition [there] may be — the employee might just feel the vaccine is unsafe or they might have philosophical, religious or even disability issues with it — I would always recommend that the employer have a conversation with the employee as to what can be done in that situation," Shoikhetbrod said.
Basing Job Decisions on Vaccine Status
Another troublesome area for employers will be if they obtain information about whether a worker has been vaccinated or, conversely, whether they know about or harbor suspicions that someone hasn't gotten inoculated and subsequently use that knowledge to give one worker a leg up over the other.
Rubin offered a hypothetical: An employer is aware that one salesperson is vaccinated because the person "has been wearing their 'I've been vaccinated' button around the office," while holding suspicions that a second salesperson likely hasn't been vaccinated. Based on that knowledge, the employer then opts to send the vaccinated salesperson to do in-person sales work because the employer knows that person won't get sick, while the second sales person isn't sent out because the employer is worried that person may get infected.
"You could have a situation where Employee A, because now they have client-facing sales, [is] making more money. There's the adverse employment action right there, you can see it. Salesperson B is making less in commissions and they could make a claim that their compensation is impacted because they're not vaccinated," Rubin said. "You can kind of see how a claim could potentially be crafted that they're not seeing the same employment opportunities because they're not being [given] client-facing roles because they're not vaccinated."
While the EEOC has indicated that employers asking whether a worker has been vaccinated doesn't amount to the sort of medical information that is barred under the ADA, Rubin cautioned that such information could still be dangerous for employers to possess and the best course of action for employers may be to not seek it out at all.
"That way it's really hard to accuse the employer of taking some sort of action based on something the employer doesn't even know," Rubin said, while cautioning that employees can still willingly divulge such information even if employers don't actually ask for it.
Segregating Specific Groups of Workers
Since the start of the pandemic, one of the key recommendations by public health officials for businesses and the public at large has been for people to maintain distance from one another. Scores of businesses, both those that remained open throughout the pandemic and those that reopened more recently, have taken that to heart and adopted social distancing plans for their workforces.
If employers have a baseline of implementing guidelines from the U.S.
Centers for Disease Control and Prevention and the
Occupational Safety and Health Administration across the board on measures like physical distancing, employers should largely be in the legal clear, according to Rubin.
However, employers could run into trouble if they separate workers based on, for example, a suspicion that a person is "frail" or in poor health or isolating older workers.
"If you're segregating based on characteristics that you perceive as being worrisome to you as an employer and you're preventing … individuals from having the same opportunities because of that, that's when you're getting into the territory of potentially a discrimination claim," Rubin said.
When it comes to potentially singling out nonvaccinated employees,
Greenberg Traurig LLP shareholder Jon Zimring said "context matters" for employers in evaluating such situations. For example, the potential for grievances from unionized workers or particular jurisdictions that impose more "onerous standards for workplace safety" can be factors that influence the way employers handle situations with individual employees who aren't inoculated.
"If the safe and effective performance of the job requires such measures, and if it is consistent with the expectations that have been set by the employer's past communications to employees during the period before vaccinations were available, then it is more likely that an employer can take such measures," Zimring told Law360 in a written statement. "If, on the other hand, the job and business-related reasons for taking such actions are unclear and/or it appears the employer is punishing employees who opted not to get the vaccine, that could be problematic."
Forcing Leave on Unvaccinated Workers
During the pandemic, an area of law that has seen drastic changes involves job leave, with the federal government and numerous cities and states enacting various laws that allow for paid or unpaid leave to help workers weather the challenges.
Shoikhetbrod said that the leave issue is a "gray area" given the varying federal and state leave laws that exist. And the first step for employers is having a policy in place that they can point to as giving them the authority to be able to tell workers that they need to go home.
While employers can consider putting workers who are required to be physically present as part of their job in a temporary telework status or placing them on leave if they tell their employer they aren't vaccinated, it gets far riskier from a legal perspective if an employer tries to make them take leave without the worker wanting to do so.
"Implementing a forced leave or leave without pay or forcing them to take sick days — that could raise concerns, especially if it's not something the employee is requesting," Shoikhetbrod said. "They might feel like they're being subjected to some sort of discriminatory action by the employer."
"Now if an employee is the one who's requesting [leave], if it falls within the categories of something that would fall under sick leave and they have the leave to take, then I wouldn't see an issue with that," Shoikhetbrod added. "The issue becomes whether or not they have the leave and whether or not the employer is willing to put them on leave without pay status."
Shadow-Mandating a Vaccine
In its recent guidance, the EEOC offered employers a legal road map should they opt to require workers to get COVID-19 vaccinations, including the steps they must take before any actions can be taken against an unvaccinated worker, like banning them from job sites.
But Zimring noted that even if employers don't frame their vaccine policy as mandatory, they could find themselves in hot water with the EEOC if their policy is "ultimately deemed to have been mandatory in effect" after a worker is penalized for not being vaccinated.
"Employers who state that vaccination is voluntary, who then lay off, force leave upon or refuse to allow employees who forgo vaccinations to return to work, risk exposing themselves to the argument that despite their initial statements, they actually regarded the vaccine as mandatory," Zimring said. "Included among these are establishing business-related justifications for requiring vaccination, deciding whether to administer it themselves or through third parties or instead accept employee certifications that they received it and appropriately dealing with employee medical and religious objections to receiving the vaccine."
"EEOC could take an interest in any employee claims arising out of a scenario where employers have said up front that the vaccine is voluntary but then act on the back end like it was a mandatory risk. And employers with unionized workforces may almost certainly face union challenges to such actions unless they were previously bargained," he added.
--Editing by Leah Bennett.
For a reprint of this article, please contact reprints@law360.com.