By Lynne Curry bio
Question:
We have a small eight-person office. We don’t interact with the public. Although we’ve worked remotely for the past year, we’ll be moving back into the office in the next few weeks. We’re generally looking forward to it,
Most of my coworkers have been vaccinated. We talk on Zoom about how happy we are to have gotten vaccinated and compare side-effect stories. Two of our coworkers don’t participate in these discussions. I suspect they haven’t been vaccinated and don’t intend to get vaccinated.
Am I allowed to ask?
Is it necessary or appropriate to have different rules regarding masks for different employees; for example, “masks aren’t required unless a meeting includes person “x”?
Can we forgo masks all the time and figure any unvaccinated employees have chosen to take their own chances?
Do these answers differ if the unvaccinated person is unvaccinated by choice as opposed to because of a religious belief or other protected reason?
How do we fairly address all employee’s needs without making vaccinated employees wear masks or be otherwise inconvenienced to protect those who’ve chosen not to protect themselves?
Can there be different rules for vaccinated and unvaccinated employees such as only vaccinated employees can travel of company business?
Answer:
You can ask if a coworker has received a vaccine.
According to Perkins Coie Senior Counsel Michael O’Brien, “Not only can fellow employees ask whether coworkers have been vaccinated, they likely will. They may also ask why a coworker doesn’t choose to be vaccinated. If these coworker “why nots” evolve from simple questions to taunting or differential treatment based on a person’s religion, pregnancy status, or disability, vaccinated employees may create a hostile environment for non-vaccinated employees. Left unchecked, that sort of hostile environment could lead to discrimination claims against the employer.”
The EEOC allows employers to ask employees whether they have been vaccinated. This is because the EEOC don’t view asking employees about vaccination status as constituting a medical exam because employees may have multiple reasons for not obtaining vaccinations.
Attorney O’Brien cautions that an employee’s “answer to the vaccination question may involve HIPAA-protected information. As a result, employer need to ask for it in a deliberate way and hold the results confidential and separate from other employment records. Further, while it’s fine for employers to ask whether or not an employee has been vaccinated, asking ‘Why not?’ may invite discrimination claims, especially if and when vaccinated employees are given extra benefits.”
As mentioned in an earlier post, employers can require vaccination as a condition of employment; however, need to accommodate employees who don’t get vaccinated due to legally protected reasons such as sincerely held religious beliefs or medical conditions.
Additionally, fully vaccinated employees may interact indoors with vaccinated coworkers without wearing masks or physical distancing.
Vaccinations don’t offer one hundred percent protection; thus, vaccinated employees can still get COVID-19. In other words, you’re wearing a mask to protect yourself as well as an unvaccinated coworker if you’re in his/her presence. Fully vaccinated individuals need to wear a well-fitted mask, physically distance and practice other prevention protocols when interacting with unvaccinated individuals. For safety and risk management reasons, employers need to maintain all COVID-19 protocols, including masking and distancing. This protects unvaccinated employees.
If all employees in a particular enclosed workspace have received both vaccinations and unvaccinated coworkers don’t enter their workspace, these employees need not wear masks nor stay six feet apart.
If all employees in a meeting have been vaccinated, they don’t need to wear masks or remain six feet apart during the meeting. Employers may also want to obtain a signed vaccination status acknowledgement from all meeting attendees, along with a waiver related to misrepresentation of vaccination status. Your employer needs to be cautious about “masks aren’t required unless a meeting includes person “x” as that could lead to allegations of a hostile workplace.
Fully vaccinated employees may eat together.
The CDC advises that all individuals, even those fully vaccinated, not travel. As a result, employers need to minimize required travel and listen and thoughtfully respond to employee who express concerns about required travel.
As you’ve deduced, and as O’Brien corroborates, it may be a simple process of deduction to determine who has and has not been vaccinated.