Unvaccinated workers looking to head back to offices and other shared work locations could run into new employer policies singling them out from vaccinated colleagues by requiring they wear masks.
For the approximately 34% of unvaccinated adults in U.S. households who say they don’t plan on receiving a COVID-19 vaccination, employment law experts say that, under federal law, the unequal treatment is likely within an employer's authority. However, until authorities issue further clarification, and until policies play out in the real world, the issue is not fully settled.
Aside from potential state law issues, Alston & Bird partner, Brett Coburn, said, in his view, it is permissible for an employer to have different policies regarding masks for vaccinated and unvaccinated employees.
“I just don’t see any issue, legally, with saying to employees, ‘If you're fully vaccinated, you don't have to wear a mask, if you so choose. But if you remain unvaccinated, or partially vaccinated, you need to.’”
Still, Coburn anticipates objections to such a policy from unvaccinated workers who say an employer requirement to wear a mask effectively forces them to disclose their vaccination status. And that raises a gray area, because the Equal Employment Opportunity Commission (EEOC) has not issued guidance on whether a worker’s vaccination status qualifies as “confidential medical information.”
'Not confidential medical information'
Under U.S. law, employers are prohibited from sharing a worker’s confidential medical information, with some specific exceptions. So far, the EEOC’s guidance only clarified that an employer may ask a worker to disclose their vaccination status and to provide proof of vaccination, without the employer’s questions amounting to disability-related inquiries protected by the Americans With Disabilities Act (ADA).
“The EEOC position appears to be that [vaccine status] is not confidential medical information at all,” Coburn said. But even if it is, he said, he expects those who object would face an uphill argument, given that even fully vaccinated workers may choose to wear masks.
Ogletree Deakins labor and employment attorney James Paul agreed.
“Mask wearing, in and of itself, doesn't force or imply anything about someone's vaccination status,” Paul said. “And there are plenty of people...who even though they are vaccinated, want to wear a mask. It could be because of a medical condition, or religious belief, or a political belief, or a personal belief, or just the fear that these vaccines aren't proven yet, or may have side effects, or long-term side effects that we don't know about.”
Paul also said he believes that an employer's differentiation in masking and even social distancing rules regarding vaccination status will hold up legally because of potential legal liabilities in the form of workers compensation or other injury claims.
“If [workers] are working in the scope of their employment...and they're at risk from contracting a virus, then the employer has a duty, and an obligation to make work safe,” Paul said.
Federal health officials acknowledge that a small percentage of vaccinated individuals will still develop COVID-19. Still, in explaining recent guidance that vaccinated individuals do not need to wear masks in most settings, Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky noted that "if you are vaccinated, you're very unlikely to be able to get asymptomatic disease, and, therefore, transmit to other people."
Regardless of whether employer mask mandates become a legal issue, Coburn and Paul caution that they could become an employee relations issue. Masked workers, they anticipate, could be shamed by co-workers, harassed, or treated as second-class citizens. And unmasked workers suspected of lying about their status could become the subjects of employer investigations.
Theoretically, workplace harassment, especially if it’s based on a worker’s religious beliefs or disability status, could give rise to a hostile work environment claim, Coburn said, though he expects those instances to be rare.
Nonetheless, employers who suspect an employee has been dishonest about receiving vaccination can conduct further inquiry if they initially operate under an honor system for vaccination status.
“It’s sort of like a reasonable suspicion drug test,” Coburn said.
Coburn said, to avoid legal risk, employers should avoid spot checking employee vaccine cards, though asking for vaccine verification should pass legal muster if employers have reason to believe a worker might be lying about their status.
As Georgetown Law professor Lawrence O. Gostin told Yahoo Finance, "I think the employer is certainly within his or her rights to require authentication and proof that the person is vaccinated as a condition for them to come to work, and whether or not they need to continue to be masking and distancing."