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Segregating Unvaccinated Workers? Think Twice, Attorneys Warn

May 21, 2021, 9:30 AM

Vaccinated? You’ll be on floor 1. Unvaccinated? Floor 2.

Employers can legally separate vaccinated and unvaccinated workers—by shift or floor, for example—but lawyers are cautioning against it, following recent CDC guidance that says those fully inoculated against Covid-19 can mostly shed their masks.

“It would be a stupendously bad idea to go down that road from an employee-relations perspective,” said Michael Blickman, a management attorney with Ice Miller LLP.

Most employers can generally require workers to receive a Covid-19 vaccine, but business-wide mandates have been rare, leaving workplaces mixed with vaccinated and unvaccinated employees.

As companies contemplate strategies for blended workforces, and states grapple with requiring proof of vaccination, some employers are seeking counsel on the practical and legal implications of separating employees based on inoculation status, lawyers said.

Although employers have a free hand to divide workers because vaccination status isn’t a legally protected category, such a policy would be burdensome to administer and likely generate resentment among workers on a topic that’s become politically charged, attorneys said.

Segregating workers also raises potential legal risks, as some workers can’t get vaccinated due to health conditions or religious objections, said A. Klair Fitzpatrick, a partner with management-side law firm Morgan Lewis & Bockius LLP in Philadelphia. Workers can refuse the jab based on disability or religious belief, so employers could then face allegations of bias against those workers if they suffer negative consequences as a result of being segregated, she said.

“If an employer’s going to do that and separate people in that way, they really need to be consistent in how they do it,” said Emily Nugent, a California solo practitioner who represents workers alleging discrimination.

Actually Practicable?

Restaurants, retailers, and other public-facing operations could protect customers—and possibly get a marketing boost—by segregating workers and having maskless, inoculated staff on duty during the most profitable business hours, attorneys said.

But that strategy could also incur costs if a company’s best performers are also the ones who won’t get the jab, said Robert Duston, an attorney with Saul Ewing Arnstein & Lehr LLP, who represents employers. Duston said any company even contemplating a separation policy should survey workers to know which category each worker would fall in.

The U.S. Equal Employment Opportunity Commission hasn’t updated its guidance to address separating vaccinated from unvaccinated workers. While the laws the agency enforces don’t specifically bar such an arrangement, employers “should be mindful of their obligations” under Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and other equal employment opportunity laws, spokeswoman Kimberly Dulic said in a statement.

“Employers also should be mindful to proceed in a way that preserves the confidentiality of employee medical information,” she added.

Depending on the workplace, dividing workers wouldn’t be feasible and might not make sense from a health and safety standpoint, some attorneys and occupational health specialists said.

Workers who are fully vaccinated and not wearing masks are already at an extremely low risk of infection, said Nicole Greeson, a board member of the American Industrial Hygiene Association. Mixing them with unvaccinated workers wearing masks wouldn’t increase infections risks.

“It’s just not worth the logistical hassle of trying to separate them,” said Greeson, director of occupational hygiene and safety for the Duke University Health System.

The issue is moot for health-care providers because the Centers for Disease Control and Prevention continues to require all workers to wear masks, Greeson added.

Impossible in Some Settings

In supermarkets, factory settings, or warehouses, there’s really no way to segregate, said Debbie Berkowitz, the National Employment Law Project’s worker safety and health program director. She served as chief of staff and then senior policy adviser for the Labor Department’s Occupational Safety and Health Administration during the Obama administration.

“If there are non-vaccinated workers in the workplace, they still need to implement protective measures, and I wish OSHA would have required that,” she said, referencing the agency’s long-awaited Covid-19 emergency temporary standard, whose fate remains in flux.

More fundamentally, all workers can work together in the same place by following safety protocols, which can include allowing vaccinated workers to go without masks, said Carol Goodman, a partner with Herrick, Feinstein LLP.

And while a policy that segregates employees based on vaccination status wouldn’t violate any laws on its face, it seems to be an odd way of managing the risk of Covid-19 in the workplace, said Carolyn Wheeler, a lawyer with the worker-side law firm Katz, Marshall & Banks LLP.

“That just sounds weird to me,” Wheeler said.

Show Me Your Papers

Allowing workers to remove masks, however, leaves employers in the tough situation of not knowing who is fully vaccinated.

Some states that have their own occupational safety and health agencies have approved or are considering approving employers to require proof of vaccination before workers can stop wearing a face covering and abiding by social distancing rules.

The Oregon Occupational Safety and Health Administration on May 19 issued guidance that an employer must verify a worker is fully vaccinated before permitting them to remove face coverings and disregard physical distancing requirements.

The California Division of Occupational Safety and Health is proposing that that an employer must have “documentation” showing a worker has been vaccinated before relaxing masking and physical distancing requirements. The change hasn’t yet been voted on by the state’s Occupational Safety and Health Standards Board.

Other states are passing laws limiting employers’ ability to set workplace policies based on whether a worker is vaccinated.

Montana enacted a law on May 7 banning employers from making hiring decisions or setting work rules based on a worker’s vaccination status, or from requiring vaccinations if the vaccine is approved under an emergency use authorization or undergoing safety trials. The law (HB 702) does make some exceptions for health-care employers and schools.

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com; Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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