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Do Punitive Measures Taken Against Unvaccinated Employees Raise Legal Issues?

    Client Alerts
  • September 10, 2021

In recent months, we have reported extensively on the various carrot-and-stick approaches taken by employers to try to incentivize employees to get the COVID-19 vaccine. In recent weeks, we have seen employers frustrated over low employee vaccination rates ask about or even implement new steps that appear on their face to punish employees who still refuse to be vaccinated.

For example, an employer wants to ban remote working arrangements for unvaccinated workers. Another wants to segregate unvaccinated employees together in one part of the worksite and limit their access to other areas and facilities. Still other employers are considering outdoor mask mandates or requiring COVID-19 testing at frequencies that exceed Centers for Disease Control and Prevention (CDC) guidance. All of these measures appear to be calculated to make it more difficult for non-vaccinated workers to function. Many of these steps do not appear to be called for under current medical guidelines.

If the employer makes appropriate accommodations based on medical or religious objections to vaccination, they may not face many limits on their ability to take these punitive measures. Unvaccinated status alone is not a protected classification under current federal or state laws governing employee rights. Measures such as clustering unvaccinated persons together could result in Occupational Safety and Health Administration (OSHA) complaints if these steps make it more likely that COVID-19 infections could spread at work.

Of course, these measures may have the effect of causing unvaccinated employees to quit. If employers are willing to accept the risk of employee departures, it might make more sense to simply mandate employee vaccinations. Employers could reach the same goal without the need to implement what may be perceived as unnecessarily punitive policies.