As the Delta variant of COVID-19 surges through the country, renewed discussions and concerns have arisen about the impact of the ongoing pandemic. Will businesses be forced to close again? How will this affect the battle between work from home (WFH) and return to the office policies? At the core of these questions is the matter of vaccination. We wrote in June that the EEOC said employers could mandate vaccinations, with a couple of caveats. But some legal experts warn of other workforce complications, such as the potential for claims of “vaccination discrimination.” HR professionals, staffing firms, managed service providers (MSPs), and business leaders may need to prepare.  

The Pandemic Hasn’t Ended and the Virus Is Evolving

Stronger, more serious variants of COVID-19 have been detected around the world. Here at home, as CNN reported, “The more contagious Delta variant of coronavirus now makes up 83% of sequenced samples in the United States, US Centers for Disease Control and Prevention (CDC) Director Dr. Rochelle Walensky said Tuesday.”

The Delta variant is said to be twice as infectious. Epidemiologists have described it as the “fastest and fittest.” Even people who are fully vaccinated could catch it, though the odds are predicted to be low. The larger problem is that U.S. vaccination rates have stalled. Also from CNN: “Less than half of the US population is fully vaccinated, according to CDC data, and the majority of those who are not vaccinated are not at all likely to get vaccinated, according to a poll published Tuesday by Axios-Ipsos.”

In parts of California, indoor mask policies have returned. Those rules extend to vaccinated individuals. Yet the slowing rate of inoculation in the country isn’t an issue of supply shortages or accessibility. Many people have refused the shots because they believe that masks alone will protect them. Masks only help curb transmission. They don't prevent infection.

Others, like patients of Dr. Brytney Cobia, a physician in Alabama, have chosen to avoid the vaccine for entirely ideological reasons. Dr. Cobia told USA Today that these people “thought the pandemic was a ‘hoax,’ or ‘political,’ or targeting some other age group or skin color,” even as their loved ones died from the disease. She explained how, after losing a patient this way, she hugged the surviving family members and urged them to get the doses.

Naturally, these issues have a direct and powerful influence on business. A lot of companies want to move forward or call their workforces back into the office. They don’t want infections to begin spreading among the staff, and they certainly don’t want to close down physical operations again. The Equal Employment Opportunity Commission (EEOC) has approved employer-mandated vaccinations, except for workers with disabilities or certain religious objections. Some companies have permitted their employees to decide for themselves whether they will receive the vaccine. Others have adopted a voluntary vaccination incentive program.

All of that said, an article published by the law firm Venable LLP, authored by Todd J. Horn, Robin L.S. Burroughs, and Emily M. Tortora, presents a hypothetical scenario that could have very real consequences in terms of employer liability:

“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?”

Vaccination Discrimination

As the Venable LLP team noted, the workforces of many businesses may soon schism into three different 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.”

Vaccination is not protected status under current federal regulations for anti-discrimination. And groups of employees may legally refuse the shots under existing protections, such as religion, disability, or pregnancy. If those protected individuals are treated less favorably than their vaccinated colleagues, legal risks begin to mount.

So, returning to Venable LLP’s example: “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 discrimination.”

Although no amendments to federal anti-discrimination laws have been introduced, lawmakers at the state level have already started proposing rules that reach beyond existing statutes.

• Legislators in certain states support laws that would allow any unvaccinated employee to sue for “vaccination discrimination,” regardless of protected or unprotected status.
• In Iowa, proposed updates would allow an employee to sue an employer for discrimination in compensation or conditions of employment if he or she refuses vaccines, for any reason.
• In Kentucky, lawmakers are seeking to prevent employers from limiting or segregating workers in a way that would deprive them of employment opportunities for declining a vaccination.
  

These states don’t represent isolated movements. Rhode Island, Pennsylvania, and Texas officials are considering similar changes. Yet there remain additional concerns on a wider scale.

• Employees who discuss their vaccination status with coworkers could open the floodgates for liability, particularly if the questions hint at or expose protected and private matters such as disabilities, religion, or pregnancy.
• Comments implying that a person should get vaccinated due to age would also spur complaints of unfair treatment.
• The same would also apply if a manager commented that an individual had first access to the shots, because those who received their doses early were the elderly, the medically vulnerable, and people with existing health conditions. Disclosing this information would violate privacy or inspire allegations of agism. 

Plan Ahead

The lack of official guidance from regulators here leaves HR and business leaders to figure out their own best practices. Regardless, our jobs are to reduce risk, ensure compliance, and enforce equality in the workplace. This is the time to speak with corporate counsel, monitor regulatory agencies for updates or changes, educate managers and employees, and prepare policies that proactively stop a potential situation from becoming a material liability. 

Photo by Mika Baumeister on Unsplash