What if Customers Prefer Vaccinated Employees?

​Although a business's customers may say they prefer to interact with employees who are vaccinated against COVID-19, the business may not disclose the vaccination status of individual employees. Employers may instead adopt vaccination mandates but still need to provide reasonable accommodations to workers with disabilities or religious objections.

"Perhaps the simplest way for employers to respond to customer preferences for vaccinated employees is to require that all employees be vaccinated," said Jill Kahn Marshall, an attorney with Reavis Page Jump in New York City. "Such mandatory vaccination policies are currently legal in the vast majority of states, subject to the provision of reasonable accommodations for employees with disabilities and sincerely held religious beliefs."

Employers that choose not to have mandatory vaccination policies are in a trickier situation, she said. "Initially, many employers were hesitant to institute such mandates for fear of pushback from their workforce," she noted. "If the lack of employee vaccinations starts impacting the employer's bottom line, I think that will change the calculus."

The U.S. Equal Employment Opportunity Commission has said that employee vaccination status is confidential medical information under the Americans with Disabilities Act (ADA). On this basis, an employer cannot comply with customer requests to be provided service only by vaccinated employees because the employer would inadvertently be disclosing employee vaccination status to a third party, Marshall said.

No employer should provide information about an individual employee's vaccination status to a customer unless the employee has consented to the disclosure, said Chris Feudo, an attorney with Foley Hoag in Boston.

While an employer technically could ask an employee to disclose proof of vaccination to customers voluntarily, "such a policy runs a slippery slope toward coercion to provide such information, and I would not recommend it," Marshall said.

Partial Vaccine Mandate

An employer that doesn't want a vaccine requirement across the board might institute varying vaccine requirements for different groups of employees so long as the requirements do not unlawfully discriminate, said Jessica Summers, an attorney with Paley Rothman in Bethesda, Md. For example, an employer might require only employees who work in certain positions or locations to get vaccinated but not require vaccines for others, she said.

"The caveat to all of this is that employers will have an obligation to reasonably accommodate an employee who cannot receive the vaccine because of a disability or who won't receive the vaccine because of a sincerely held religious belief, unless the employer can demonstrate that such accommodation will cause an undue hardship for the business," she said. The threshold for undue hardship for a disability accommodation is higher than for a religious accommodation, Summers noted.

If an employee requests an accommodation to a vaccine requirement, the employer will need to discuss possible reasonable accommodations with the worker.

"Where the vaccine requirement is based on a customer demand, a reasonable accommodation might include reassigning the employee to a similar position servicing a different customer who does not have a vaccine requirement or working with the customer to identify heightened safety precautions in lieu of vaccination that the employee might be able to take," she added.

However, Robert Nichols, an attorney with Bracewell in Houston, cautioned that offering a particular assignment only to vaccinated employees "conceivably could constitute a violation of employees' rights under the ADA or Title VII" of the Civil Rights Act of 1964.

Nonetheless, Ian Carleton Schaefer, an attorney with Loeb and Loeb in New York City, said a reasonable accommodation might be mask wearing and social distancing or "even being serviced by a fully vaccinated employee instead."

Talking Points

Employers should prepare managers for discussions about customer preference for employees who have been vaccinated.

Managers' response "might include information regarding the total percentage of vaccinated staff and a description of other steps taken to ensure a safe environment," said Lindsay Stone, an attorney with Sheppard Mullin in New York City.

"For instance, a possible response might be, 'We understand your concerns, and you should know that we take your well-being seriously. We can't disclose any individual employee's vaccination status, but 90 percent of our staff is fully vaccinated. We have also taken other steps toward maintaining a safe environment. For instance, we frequently sanitize high-touch areas, require all customers to sanitize their hands upon entry and require everyone to wear a mask while on the premises,' " she said.

If the customer asks a specific employee whether they have been vaccinated and if not, why not, the employee shouldn't be compelled to discuss confidential medical information, Stone said. The employee should be given the option to seek assistance from a manager or supervisor without having to provide an explanation.

"The employee may also be given the option to respond by saying, 'I'd rather not discuss my personal medical information. I'm happy to talk with you about the measures that the employer has taken to prevent the spread of COVID-19,' " Stone said. "The employee should always be empowered to disengage from the conversation or seek assistance if the customer becomes argumentative, aggressive or overly personal."

Entering a Customer's Premises

"Where friction might occur is if the customer requires all persons, including contractors or visitors, to present proof of vaccination before entering their premises," Summers said. Federal law does not prohibit private businesses from asking those coming onto their premises to show proof of vaccination, though state law may impose restrictions on such questions.

"Thus, employees might be required to provide proof of vaccination directly to the customer as a condition of entry," she said. "The preferred situation is for the proof of vaccination to be handled through the employer. Where the customer is requiring proof of vaccination for entry to its premises, the employer will still need to work with employees who may qualify for a reasonable accommodation and would be barred from entering the customer's premises."