Employers Apply Different Requirements to Vaccinated and Unvaccinated Workers

​Some employers are applying certain workplace rules only to unvaccinated workers in an effort to protect employees from the COVID-19 delta variant, but in doing so are inadvertently intensifying conflicts between vaccinated and unvaccinated workers, as well as creating legal risks. Other employers are opting for universal standards to protect employee safety.

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"Some employers are requiring unvaccinated employees to submit responses to daily screening questions, while not requiring vaccinated employees to do so," said Jonathan Wetchler, an attorney with Duane Morris in Philadelphia. "Employers have also considered whether to limit access to certain parts of the workplace to only those who are vaccinated."

Other businesses might consider limiting business travel to vaccinated workers, said Stéphanie Smith, an attorney with Casner & Edwards in Boston. "Employers [that] allow unvaccinated workers in the office might also require them to continue wearing a mask in the office and submit to daily temperature checks or weekly COVID tests," she added.

Some vaccinated employees will resist returning to work if unvaccinated co-workers don't submit to daily screening information about symptoms and COVID-19 exposure and don't report negative results on a weekly basis, Wetchler said.

On the other hand, unvaccinated employees may view workplace requirements that apply only to them as an imposition on their personal rights.

"Suffice it to say that the manner in which employers address concerns of this nature, as well as COVID-19-related workplace health and safety practices, may have a profound impact upon employee morale, productivity and loyalty," Wetchler said.

Rules for Unvaccinated Staff

"Given the proliferation of the delta variant, organizational practices and rules applied to vaccinated versus unvaccinated employees remain very much in flux," said Philippe Weiss, president of Seyfarth at Work.

He noted that some companies are requiring only unvaccinated staff to:

• Wear a mask.
• Maintain social distancing.
• Work remotely—the ultimate in social distancing.
• Test regularly.

"For those who require a different set of standards for vaccinated employees, it is helpful for employers to be clear in their communication that the standards being set are a base line and those who are vaccinated can certainly wear a mask if they choose to," said Andrea Zoia, an attorney with Morgan, Brown & Joy in Boston.

Workplace Conflicts

"There may well be conflicts in the workplace between the masked and unmasked," said Joseph McConnell, an attorney with Morgan Brown & Joy in Boston. "Indeed, the mask wearing for vaccine-hesitant employees may feel like a type of scarlet letter, even though some employees who are vaccinated might continue to mask because of their own sense of continued safety."

Many business leaders are talking about the potential to create a "corporate caste system" made up of vaccinated and unvaccinated employees, with resulting resentment among both groups, Weiss said.

The unvaccinated "are already crying foul, in certain cases, at what they consider unfair preferential treatment of their vaccinated colleagues" and are also resisting the anticipated inconvenience certain restrictions may impose on them, he noted.

On the other side, "those who are already vaccinated are reaching out to HR in increasing numbers, voicing frustration at the risk they perceive unvaccinated co-workers may pose to [the vaccinated employees'] family members—such as those who are immunocompromised or [who have] young children—due to transmission risks," he said.

Vaccinated workers also cite the administrative costs imposed by creating a set of rules for the vaccine holdouts, Weiss added. "As one senior sales manager at a skin care company put it in one of our fact-finding interviews: 'Why should our HR team spend half their time creating and managing a dual system, simply because a bunch of people don't want to play by the most basic safety rules?' "

The delta variant is accelerating the question of whether employers should require that all employees get the shot, he noted.

Even when vaccinations are mandatory, there may be separate rules for vaccinated workers; those who are openly opposed to the vaccine; and the "validly excused," or those who request and receive disability-related or religion-based accommodations.

"It is important that this third group not be placed in any position where their access to opportunities is reduced," Weiss cautioned.

Legal Considerations

One critical question to consider is whether a rule somehow adversely affects a specific protected group, even if unintentionally, Weiss said.

"Applying different workplace privileges or safety requirements to workers based on vaccination status increases the risk of discrimination claims," said Christina Janice, an attorney with Barnes & Thornburg in Chicago; Columbus, Ohio; and New York City.

"Having different standards for vaccinated and unvaccinated workers in the workplace may raise issues of privacy and fairness on the part of unvaccinated workers, who may feel ostracized by their employer and co-workers," Smith said.

Another legal consideration: Some collective bargaining agreements may limit the unilateral imposition of workplace rules.

But asking an employee if he or she is vaccinated does not violate the Health Insurance Portability and Accountability Act, noted Bill Heller, an attorney with Akerman in Fort Lauderdale, Fla.

Universal Standards

A big challenge for employers is how to ensure all unvaccinated employees are following the stricter set of rules that apply to them, said Abigail Kagan, an attorney with McDermott Will & Emery in New York City.

"Even employers [that] required a one-time proof of vaccination have found that it's simply not feasible for an HR director or an office manager to spend [his or her] day marching up and down the halls to double-check that the right employees are masking up or keeping their distance," she said. As a result, some organizations are doing away with different sets of standards and imposing a universal set of rules for all employees.

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]