Analysis

This article has been saved to your Favorites!

State Bans On Vaccine Status Bias Shake Up Employer Plans

By Anne Cullen · May 7, 2021, 7:42 PM EDT

Bills that would outlaw workplace discrimination based on COVID-19 vaccination status are moving through dozens of state legislatures across the country, with at least two already on the books.

Experts say businesses may need to rework their coronavirus policies to match the new mandates.

The proposed bills, which have been nearly exclusively backed by Republican lawmakers, would in many cases bar employers from mandating their workers get vaccinated and make it illegal for them to discriminate against those who opt out.

While those who don't get vaccinated for medical or religious reasons are already protected from unfair treatment by federal law, these legislative efforts would install a state-level legal shield for anyone who chooses not to get the jab for whatever reason.

"These proposed bills would be extending that protection to people who aren't vaccinated for reasons other than legally protected reasons, essentially turning them into legally protected reasons," said Seyfarth Shaw LLP partner Karla Grossenbacher.

Republican Utah Gov. Spencer Cox signed a bill like this in March that bars the state government from mandating the vaccine and says public employers can't require someone to be vaccinated to get hired, though it carved out an exemption for workers in public health and medical settings.

Arkansas soon followed suit, enacting a bill in late April that also outlaws mandatory vaccinations, save for in medical facilities, and makes it illegal for employers to withhold any employment opportunities or benefits — like a job, a promotion or health coverage — from those who choose not to get the vaccine. 

Republican legislators in Montana are close to getting a bill enacted that would similarly bar employers from treating unvaccinated workers differently in hiring, firing, compensation and other workplace decisions, with exemptions for some health care facilities.

More than two dozen other states have also floated measures that would prohibit businesses from showing a preference for applicants or employees who have gotten the jab.

For employers that may be affected by one of these laws, or have a related measure pending in a state they operate in, experts say there's some steps they need to take to keep their workplace in compliance.

Roll Back Any Mandatory Policy

Federal guidance says private employers are legally clear to make their employees get the COVID-19 vaccine as long as they make accommodations for those with religious or medical objections, but many of the proposed state bills would outlaw mandatory vaccination policies.

While experts say few businesses opted to mandate vaccines — the vast majority decided to encourage it instead — some company leaders that did lay down a COVID-19 vaccine requirement may need to pull the plug on that plan.

"If they have chosen that they want to require vaccines, they're going to have to change their policies," said Husch Blackwell partner Lowell Pearson.

Pearson added that this should be "a fairly simple compliance task for employers."

Rethink Return-To-Work

Management-side lawyers say these measures could hinder affected employers' plans to bring workers back on-site if they were considering only letting vaccinated workers return to the office.

"Employers need to reframe how they're looking at return-to-work," Seyfarth's Grossenbacher said, "because a lot of employers are looking at distinctions based on vaccination status."

Many of the state bills seeking to eliminate workplace bias based on vaccination status would make this kind of differing treatment illegal, so experts said company leaders need to be ready to let everyone come back at the same time and address any concerns that may arise in these situations.

Faegre Drinker Biddle & Reath LLP employment partner Susan Kline said she's heard from several clients who are running up against employee concerns about working alongside unvaccinated colleagues.

"There are some people saying, 'If I have to come back, I want to work with only people who are vaccinated, at least if they can be,'" Kline said. "I've even heard to the extent that people are strongly objecting to working with someone who isn't vaccinated and could be."

Employers fielding these requests should be ready to investigate them, understand what's behind the employee's hesitance and work to address their concerns, she said. Kline pointed out that it's actually the unvaccinated workers who are least protected from COVID-19 in the workplace.

"I'm hearing that people don't want to come back to work until everyone is vaccinated, as a general principle, but the folks who are vaccinated are the ones who should feel safest," she said. "Because if there's risk, it's risk to the unvaccinated folks."

She said offering to maintain other protections — like mask policies, social distancing and upped hygiene protocols — may go a long way in alleviating some worker unease if everybody must be brought back at the same time.

Tamp Down On Workplace Harassment

By giving legal protections to a new protected category of workers — unvaccinated individuals — experts said company leaders have a duty to make sure these people aren't being bullied and harassed at work for their decision to opt out of the shot. 

This kind of mistreatment can manifest when a team member is coerced into sharing that they haven't been vaccinated, so Faegre Drinker's Kline said it's a good idea to proactively set out policies around vaccine conversations.

"Employers should get out in front of this and say, 'We not only as a cultural matter don't allow bullying and shaming and interrogating people about personal choices, this actually is a legal requirement, and you just can't do it at work,'" she said. 

Company leaders need to make clear that grilling co-workers about why they may not have been vaccinated is not OK, Kline said. 

Seyfarth's Grossenbacher agreed, adding that team members and supervisors need to be "sensitized" to the issue and the potential avenues for discrimination that have opened up with these new distinctions between workers. 

"Making people aware this is illegal, if it becomes illegal, and sensitizing people to the issue — that's what employers have to do when there's a change in the law that provides employee protections," she said. 

Experts agreed that casual conversations about someone's vaccination or their experience getting the shot — such as asking which one they received or if they had side effects — likely shouldn't be a legal issue.

But businesses can get in trouble if an unvaccinated worker is being pressured to disclose information about their vaccination status beyond what they're comfortable sharing, lawyers said. 

"I don't know that employers should make broad statements that you can never discuss vaccination at all, but there are risks to it," Grossenbacher said. "Just like talking about your dating life with a co-worker friend may not be inappropriate in context with those two individuals, but you could see the potential for it to take a left turn into an area where it's not."

"There's the same thing with vaccination status," she said. 

--Editing by Neil Cohen.

For a reprint of this article, please contact reprints@law360.com.