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3 Ways Favoring Vaccinated Workers Could Cost Employers

By Anne Cullen · Apr 27, 2021, 5:00 PM EDT

As the number of people fully vaccinated against COVID-19 in the U.S. continues to climb, employers may be considering relaxing their virus safety precautions. But experts warn that loosening the reins for inoculated workers, while keeping restrictions in place for their unvaccinated colleagues, could lead to discrimination claims.

On top of claims from workers who have medical or religious objections to the shot, many state legislatures are mulling outlawing vaccination status bias outright, putting employers on shaky legal ground if they are looking to let only inoculated employees, say, come back into the office or resume seeing clients in person.

"An employer has to be careful with making a sharp distinction between vaccinated and unvaccinated workers," said disability law expert Jonathan Mook of DiMuroGinsberg PC. "If an employer does, they have to be aware of the pitfalls."

With more businesses inching toward pre-pandemic operations and some considering clearing vaccinated workers to resume these activities ahead of their unvaccinated counterparts, here are three ways in which discrimination claims could arise.

Risks From Restricting Office Returns and Travel

Experts strongly advise against setting aside mask mandates, physical distancing and health screenings for vaccinated workers — as it runs counter to guidance from the U.S. Centers for Disease Control and Prevention guidance — but the landscape becomes blurrier when it comes to return-to-work policies, business travel or client meetings.

The CDC says fully vaccinated people are less likely to get and spread COVID-19, plus it says they don't need to get tested before and after traveling or self-quarantine upon arrival.

However, if an employee's reason for not getting the shot stems from a disability or religious objection, lawyers said that worker could have a discrimination claim against a business that lets only inoculated workers come in or see clients face to face.

"Employers need to make sure there isn't some type of discrimination that arises as a result of vaccinated versus unvaccinated employees being able to do their jobs," Mook said.

An unvaccinated worker may be able to argue that missing out on team gatherings in the office or client dinners hurt their chances of promotion or closing a deal.

This itself potentially could be an avenue for a discrimination claim, or lawyers pointed out that an allegation could stem from a performance review or disciplinary action based on issues related to these kinds of restrictions.

"Someone who was potentially terminated, they may blame it on the fact that they weren't able to come in and collaborate with their team," said Jackson Lewis PC principal Jenifer Bologna, who specializes in disability and leave management issues. "The risk of retaliation claims is high."

If a business wants to draw a distinction between vaccinated and unvaccinated workers for returning to work or travel, Mook said they must be careful when documenting employee performance to ensure workers aren't being marked down just because they can't take part in all the activities some of their peers have access to.

"My advice to employers on that is, if an employer makes a distinction and allows more client contact for vaccinated versus unvaccinated, the employer needs to be very careful in terms of assessing performance," Mook said, "so the employer can't be tagged with a claim that the unvaccinated employee was put at a disadvantage in terms of the metrics that an employer may use."

Harassment Based on Office Separation

Company leaders open themselves up to a potential harassment claim if they create visible policy differences in the workplace between employees who got the shot and those who haven't, experts said.

Carving out any special spaces in the office just for vaccinated workers, like a conference room or other gathering space is a bad idea, Jackson Lewis' Bologna said, because it clearly delineates who is vaccinated and who is not. This can foster divisiveness and harassment, she said.

"Once everyone's in the office, if you say you can't come into the conference room because you're not vaccinated, that's putting yourself in a position" that can engender harassment, she said.

"Don't put yourself in a position where you're allowing meetings to happen in-person for only vaccinated employees," Bologna added. "Don't call out and single out those who are unvaccinated."

Potential New Laws Outlawing Vaccine Status Bias

At the moment, COVID-19 vaccination status is not a protected classification under federal or state law, so employment decisions based on whether someone has received the shot is legally permissible save for situations where a worker has a medical or religious objection.

However, about half of all states have proposed legislation that would outlaw discrimination based on a worker's vaccination status. If these bills pass, big changes would be in store for businesses, said Seyfarth Shaw LLP partner Karla Grossenbacher.

"The impact in the workplace would be huge," she said. "It would give a legal right of action to people who are being treated differently based on vaccination status."

Company leaders would need to take several steps to adjust, Grossenbacher said, including refreshing policies and practices, and preparing for potential litigation.

"If you pass a law that sets forth a new protected classification, employers will have to, as a compliance matter, put policies in place that prohibit that kind of discrimination," she said. "To the extent they're making distinctions based on vaccination status, they'll have to change that."

"There will also be the specter of lawsuits," she added.

None of these bills have yet passed, but lawyers said company leaders would be wise to keep an eye on them and prepare to make any changes they necessitate.

--Editing by Haylee Pearl and Tim Ruel.

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