Can Employers Segregate Unvaccinated Workers?

Should it have been done so seemingly abruptly, well, I think the guidance itself was science based. The problem, I think is messaging. You know, we're on the honor system whether you've had a vaccination or The guidance, based on a study of four thousand healthcare workers, basically proved the efficacy of the vaccines. Since the vaccination's work, they protect you against serious COVID disease, and so when compared to additional safety you might get by continued mask wearing and

social distancing, uh, it was negligible. You're not measurable in the study. So the guidance did follow the sign Unfortunately, like here in California, we don't have very many people vaccinated. In the big scheme of things, more than six the

people remain unvaccinated. So it's confusing for business owners and everyone else that you know, if you let a hundred people in your store, statistically you know that more than sixty of them are unvaccinated, and so you, you know, for the safety of your own workers, might well consider continuing a mask mandate on your own regardless of what is the public perceived CDC guidance that masks are no

longer necessary. Well, also, it seems like there are problems because the state guidance is different from the CDC guidance. So you mentioned California is one place where that is true until today. New York is now going to lift it's state mask mandate, But in other states there's a conflict. So what do businesses do. Yeah, I think it's a messaging conflict. But when they lift their mask guides in New York today, for instance, it's still recommends that if

you're unvaccinated that you continue to wear a mask. It just wasn't going to be a matter of requirement. Uh. CDC guidance also continues mask wearing for public transportation and plane travel. But a private business vers is in a tough situation. Obviously you want to cater to the customer, but you also, under OSHA and other laws, have a

duty to keep your workforce safe. And knowing that most people are not vaccinated yet, you know, if you're a business owner, you could just very sanely decide that that the best thing for now, for another month or two is to continue to require masks. And of course that produces what we see on TV with angry, uh maskless people being denied entrance to certain stores that have decided to do that because of all the prior politicalization and

you know, guidance shifting quickly. It is a messaging mess and leaves the individual business person in quite a laundry. The guidance from the CDC was rolled out on Thursday. OSHA hasn't substantially changed its masking recommendations in almost four months. That's correct. OSHA will err on the side of work for safety and will be much slower than the other

agencies and recommending discontinuation of masks. And I think you know, common sense would tell you that if most people are still unvaccinated, probably makes sense to keep masks on the requirement list in the workplace for at least a little while longer until most people become vaccinated, and then, you know, the the issue is that the masks work, you know, despite the prior politicization of weather mask wearing was you know,

taking away my freedom and all that stuff. If you look at any large Asian city, the deaths from COVID are just a small fraction of what we experienced the United States, New York City had deaths and Los Angeles had twenty four thousand deaths. If you look the you know, Hong Kong had two deaths, Singapore thirty one deaths. Even Tokyo, which quote had a problem, is fewer than two thousand deaths,

less than one tenth of what Los Angeles experienced. So you know that it's kind of a large data point that we have is that the masks and really work. And I think the way to look at the CDC guidance is that, Okay, once you're vaccinated, you've got just as much protection as the mask, so you really don't have to wear the mask. But they, in mind view didn't emphasize enough that the vaccination was the key to be masking, and you know, the average person here is okay,

masks aren't required any more. CDCs says so, and they skip over the point of whether you're vaccinated or not. And I think that's unfortunate, and that's what we're looking at here. Do you think part of the reason for the new CDC guidance was to encourage people to get vaccinated. Yeah, that was part of the thinking from what the public spokes person seven and Dr wilens that you know, okay,

you can now discard the mask if you're vaccinated. And I just don't think that was a strong enough message. It was there, but it should have been the headline, you know, it should have been the lead, as they used to say, and and not buried it. Really, I think got buried that the trade off or no mask is getting the shot. And there's no question in my

mind that's what they're trying to accomplish. And so they're trying to incent people to get the shot so then you can, even under the honor system, get yourself free of the mask. And Americans just aren't good at the honor system or that smart, right. I think we've proved that in really addressing these serious public health issues and wearing the mask cool and they should have so I think for any excuse not to where a mask, people

are going to do it. And if you're challenged there's no vaccine passport, you just say, hey, I got vaccinated and you're good to go. But that's not really what people should be doing. They should be very serious about getting the shot before discarding the mask. Also, is the CDC guidance Is it a little confusing? Does it address you know, what you have to do when you're on

an airplane or schools or schools schools? They left local the areas that they There are three areas they said you still needed to wear masks no matter what, airplanes, health care facilities, and a public transportation And I think that's just a recognition that the vaccination rates are just not high enough to support a full dy masking of

the public at this point. But again I was disappointed in the emphasis and the messenging that that that really didn't come through, at least to what I read and heard over the last couple of days. The United Food and Commercial Workers Union criticized the CDC for failing to consider how the new policy would affect grocery store workers who have to deal with customers who are not vaccinated, right and there's no way you can force them to

wear a mask. Really, if you know, if the store management isn't going to make continue a firm masking policy at the front door, which many of them are not. You know, if you have a thousand people go to grocery store right now, six hundred of them at least are unvaccinated. So there's going to be continued spread of COVID and that exposes the workers. I mean, the only good news for the workers is the same for everyone else.

If get your shot, the data show from the study that CDC relied on that you are extremely well protected against serious disease. It's it's so kind of everyone for themselves sort of thing right now this weekend walking around in New York City. I'm fully vaccinated, and I assume a lot of other people are. But every time you want to go into a store or somewhere, you have to put the mask on anyway, because most of the stores are requiring masks. Still, it gets to be, well,

why even bother taking it off when I'm walking around outside. Yeah, there is an element of that, and we're in a transition period. And I just think, you know, if this advice had come out, you know, a month from now or or middle to late June, when maybe hopefully sixty sixty five seventy percent of the population is vaccinated. Uh, then I think people would have felt a lot more comfortable in going maskless, and businesses probably would have had

less of a requirement. But it's it's very, very conflicting right now for a business owner when you know sixty years so percent of the people are not vaccinated and you're supposing your your workforce and you you really can't require your workforce to get vaccinated either, but you can encourage everyone to get vaccinated, and that's not the best you can do, and it just is going to be messy for another six weeks or so in my view.

So for employers and employers ask employees to give them information about, you know, whether they've been vaccinated or not, or does that impinge on their privacy rights? Yeah, that varies by state. Uh. If the employer is paying generally for healthcare, the employer under the federal law has the right to know about the employee's health status just because they're a pay or so there's there's you know, some ability of the employer to gain information in that regard.

Some states have more strict laws, however, and make it on a need to know only basis. And right now, you know, I think employers can ask in most places, but the employee isn't required to tell them or to get the vaccination. And I think that's going to change. Um, you know, it's all but important differences to the status of the shots. Right now, none of the shots are fully authorized by the FDA. They're they're under the emergency

use authorization, which is different from full accepted authorization. And once the FDA moves and has full accepted authorization, then there are jurisdictions in which employers will be able to mandate that employees get the shot, or school districts will be able to mandate that the youngsters get the shot before going back to school. So that's coming. It's it's just not quite there yet because the vaccinations are not

fully approved by the FDA at this point. You know, at the beginning, I heard a lot more talk about herd immunity. Are they giving up on her immunity? No? I mean the problem with her immunity is that it's it's it's neither her nor immune. You know, we we have, unfortunately, of virus that is highly mutigetic and their new variants

being created every day. So the number of people who have to be fully vaccinated at a period of time when the virus is stable was thought maybe to be you know, in the but but what I've read recently, it's more like, because the stability of the virus is very short lived, is it mutates, and then the number of interactions that people have are given the transmissibility of the virus just overwhelmed. What's called the our number of

the ability that transmitted. You know, if we could all it's funny, but if we could all lock ourselves a closet for fourteen days, this entire thing would go away. Yeah, because it wouldn't be transmitted and the virus would die in its hosts within fortune days. What about the variants, well, you know they're a big problem. I mean, that's that's the giant unknown. So that the two unknowns we have and why you shouldn't throw out your mass quite yet are one. How long the antibodies UH and T cell

response from the vaccinations persists. Everyone's hoping it's years um, but it may be only a few months, and we don't have that data point yet because people haven't been vaccinated that long. UM. They're hoping a robust T cell response UH continues for years in the vaccinations and that would be terrific nows, but we don't know yet. We won't know for you know, year or two is what

the persistence rate is. The second giant unknown is is how the variants are going to affect both transmissibility and and the ability to create serious or fatal disease. And so we have to be prepared that one of these variants is going to skip over the protection of the vaccine and basically set us you know, at day zero again that it's like a new virus being spread. And that's the problem unvaccinated people is that they're like little

many laboratories formed for the mutation of the virus. Now, the the the silver lining in the virus that might skip over the currentvaccines is that the scientists have done a darn fine job in creating these platforms and they can quickly develop a booster shot or additional vaccine that would be able to get on top of most any variant that would come. You know our way. So it's I think going to become something like the flu shot situation, where you get one every year. It's not a great match,

but it keeps you from getting really sick. And I think the COVID situation is going to be a lot like that where it's going to continue to flourish. You know, their partial the world to have no vaccine seeing yet.

So I mean there's literally hundreds of millions of people who are able to get the disease transmitted and create mutations and so new versions that are going to be coming up for years to come at this rate, and and it's going to be a couple of years before we get the vaccination worldwide in a significant number of people to to get on top of it. And that's

including keeping on top of variants. So you know, we're in a nice kind of we've been vaccine dye during a good spot right now and all the variants seem to be reactive to the existing vaccines um but that could change and it's not the end of the world, but we need to be vigilant and to uh, you know, follow guidance if if it turns out one of these variances is not captured by the existing vaccines. Well, do we even know do we need to get booster shots

within six months? Are hearing different? That sort of is another problem problem, you know, it's a big problem. But but but I mean we've we've only i mean the first person vaccine in the United States was in November, so I mean this is only six months right now. So if we go find that person and take their blood and analyze it, we can kind of figure out how much you know, persistence there is. But there's there's such

a small group of people in November. It's really going to be more like the summer or this fall before we'll have enough people with the vaccines to be able to analyze how persistent the antibodies were and how persistent the T cell response was, So that that data point as to how persist the stuff is will be coming later this year, but again we'll only know that it's at least good for six months or at least good for a year, and it will be an ongoing study.

Is that you know how long you have to keep going and whether you need boost shots. And my expectation is the anybodies are going to go away within a year and we're all going to have to get, as I said, the annual shot, just like the flu shot, vaccine passports. I mean, people were saying that wearing a mask took away their liberty and their rights, and vaccine passports seem to be even a step up from that. But do you think that's the only way to really

tell because the honor system. I don't know about the honor system, you know. I think think that the politicalization of the masking and the and the passports is nonsense. I mean, it's it's it's it's it's a health issue. Either you've got to take care of yourself or not if you don't want to find I'm not going to think a whole lot less of you, but it's pretty dumb even that there's a fatal disease out there that

you can prevent. But I have got no question in my mind if if President Trump has sort of and said, you know, folks, we have a situation here. We all got to wear masks and socially distant for a few months while the scientists got on top of this, we would have had a much different outcome in the United States. We would have had hundreds of thousands of fewer deaths.

And it's as simple as that. You know, he enabled a whole bunch of people into frankly some not great thinking on the problem that this was somehow elimination of freedom. We didn't have that problem in nineteen eighteen with the flu that came through, people all mask up and wanted to mask up and wanted to, you know, keep themselves healthy. You know this this this nonsense that you you're entitled to not keep yourself healthy. Okay, fine, but that's that's

kind of a silly thought, right. I mean, you just go out and step in the street and hope the bus doesn't rend you over just because well, I'm I'm got to be free to walk in the street. No, there's there's sensible limitations on what you can and can't do, and wearing a mask during a time of pandemic as a sensible limitation in my view. And and it's got nothing to do with freedom. It's got to do with sensible taking care of yourself and takeing care of others.

But enough for the message. But it's it's it's gonna be a problem because it's always going to be unvaccinated people who look into and new two as I said, generate these mutations of the of the virus. Finally, some states are offering, like Ohio offering to give a million dollars to five vaccinated lottery winners, and New Jersey was offering a beer with a vaccination. Do you approve of those? Yeah? Absolutely, anything to get shots in arms. It's it's only going

to be to our our global benefit. I mean, we we have to get shots in our own arms. We have to get shots and all the arms in Africa and Asia, you know, And it's going to be a multi year project. This virus will persist long after, you know, the next few weeks, and it's the next few weeks is going to be confusion in America as as shop owners and business owners trying to figure out what the bring workforces back and what the rules of the road

are going to be. But the only way to really get on top of it is to get you know, vast majority of the population vaccinated against this thing. Thanks Rob. That's Rob Fuller, Apartment Nelson Hardeman Cat Employers legally separate vaccinated and unvaccinated workers by shift or floor, for example, and if they can, is it a good idea? Joining me is Bloomberglan Labor and Employment reporter Paige Smith. Can

employers generally require workers to get a COVID nineteen vaccine? Yes, absolutely, so I think that, you know, as more vaccines become widely available, generally and legally, most employers really can require workers to receive the vaccine upon returning to to work. But you know, I would say that those mandates have been sort of rare um and there are a lot of workplaces that are going to continue to have a sort of mix of vaccinated workers and unvaccinated workers. But

legally employers can require that. So now the question can employers legally separate vaccinated and unvaccinated workers? Definitely. So we've been hearing from a number of attorneys that they've been feelding requests from employers about whether they could segregate you know, vaccinated from unvaccinated workers. So we decided to sort of

dig into it with with this. But the answer that we sort of found was that yes, employers can legally separate vaccinated workers from unvaccinated workers, whether it's by you know, having a shift that is of unvaccinated workers or having a floor for vaccinated workers. There are sort of a

few ways that people could feasibly do that. But UM, what we also found is that folks are sort of cautioning against it, and there has been recent guidance that says that fully, if you're fully inoculated against COVID nineteen, folks can mostly shed their mass in the workplace. But UM, legally, yes, workers can be separated based on their vaccination status. So

now are there any risks? For example, if a worker won't get vaccinated because of religious reasons or religious objections, could that worker then file some kind of lawsuit if that worker is segregated. So any sort of decision like this UM in the workplace comes with some comes with some legal risks. But I think that in this situation, segregating workers definitely poses some UM discrimination risks because there are workers who can't get vascinated because of health reasons

or for because of religious objections for example. So you know, if you have a worker who won't receive the shop based on disability or religious belief UM, then they could theoretically come back and say to the employer, you know you're discriminating against me being because of UM. Because of that or UM. If those workers I should be clear, if those workers suffer negative consequences as a result of being segregated because of their disability or religious um belief.

For example, they could bring allegations of discrimination against an employer. So one lawyer told you that any company contemplating even contemplating a separation policy should survey workers. What kind of survey would you do? That's a good question, I think part of it as well as were We're not totally sure at this point in time how many employers have

contemplated separating workers based on vaccination status. Um. We haven't heard of this sort of being a widely implemented policy, So I can't speak exactly to what sort of survey would be conducted, But we do know that employers are thinking about this and that they have asked their attorneys how they should proceed. And employers are allowed to ask

employees if they've been vaccinated. Correct? Correct. If employers wish to ask employees whether they've been backcinated, they need to do so in a way that asked all employees that you know, you sort of can't single out one or two employees. Mac have you been vaccinated? Needs to be

sort of a company wide and business related inquiry. You talked to Nicole Greason, director of occupational Hygiene and Safety for the Duke University Health System, said it's just not worth the logistical hassle of trying to separate vaccinated and unvaccinated workers. What did she mean? You know, if you're in a workplace and you're going to go through the process of separating these workers, you know that that's quite a culture shift, just from you know, legal considerations aside.

That's a huge culture shift to say, Okay, you're on the unvaccinated shifts, have a great work day. Um, I think that is. That's sort of what was um, what

was implied. But I should also say that a number of experts pointed out that, you know, dividing workers wouldn't really be feasible and also might not make sense from a health and safety standpoint, because workers who are fully vaccinated and not wearing masks are already at a low risk of infection, and you know, mixing them in with unvaccinated workers who are wearing masks wouldn't necessarily increase infection risks. That's at least what the health and safety experts told us.

So page did most of the lawyers you spoke to think that you could separate workers, but it just wasn't a good idea to do that, correct exactly. That was sort of the takeaways the idea that legally you're permitted to do it. Employee employers are asking about how they can do it and if they should do it, and lawyers are essentially saying, yes, you can do it, but

it's probably not a great idea one about OSHA. Has OSHA released any new guidance since the CDC came out with the with the guidance that people who were vaccinated can basically go mask less in most places. OSHA has said that, um, that employers should essentially follow the new CDC mask guidance, So they have kind of responded after the new CDC guidance was released, but um, it was just sort of an advice to say that, um, you know, they'll be updating their materials on their website and to

for employers to check back essentially. And you spoke to Debbie Berkowitz, the National Employment Law Projects, Workers Safety and Health Program Director, and she said, in some settings, there's really no way to segregate workers. Absolutely, So there are you know, you can imagine that there are workplaces where this could be an option, for example, if you're in an office building or sort of a corporate setting. But there are also places where this just isn't feasible at all.

It's you know, kind of silly to imagine. If you're in a grocery store for example, um, you know, trying to separate your vaccinated from your unvaccinated workers, or if you're in a factory setting or in a warehouse for examples, just the idea of segregating he folks is is not really feasible. So now some states are passing their own rules about this, and they seem to fall into two camps. So some are considering approving employers requiring proof of vaccinations

before workers can stop wearing a face mask. Tell us about those states and what they're thinking about doing. Yes, So there are a number of states that have sort of weighed in on this since um, you know, since the CDC really it's it's guidance, so um, the Oregon Occupational Safety UM Agency has weighed in, and and California

has weighed in as well. So Oregon, for example, issued some guidance that said that employers must verify that a worker is fully vaccinated before having them you know, giving them the opportunity to remove face coverings and sort of ignore social distancing requirements. But um, you know, to flip over to California, California is saying that, UM, I should say they're proposing because it hasn't been fully approved yet.

UM that employer has must have documentation to show that a worker has been vaccinated before sort of permitting them to relax UM masking and social distancing requirements. So that changed. The California change hasn't yet been fully approved. But those are sort of two examples of states weighing in on the issue, and other states are passing laws that do the opposite, that limit employer's ability to set workplace policies based on whether or not a worker is vaccinated or

not vaccinated. Yes, so, for example on UM earlier this month May in on May seven, montanas Um implemented a law that banned employers from making hiring decisions or setting rules based on vaccination status. Are there just a few states doing this addressing this issue at this point in time?

Are a few states that we you know, as we sort of mentioned, that have weighed in on the issue, UM, but we can't be sure of who else might weigh in, especially since the cd C guidance is still relatively new. Thanks for being on the Bloomberg Laws Show page. That's Bloomberg Law, Labor Unemployment Reporter Paid Smith and that's it for the edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg

Law Podcast. You can find them on Apple Podcast, Spotify and at www dot Bloomberg dot com slash podcast slash Law. I'm June Grossow. Thanks so much for listening. Please turn into The Bloomberg Law Show every weeknight at ten pm Eastern idear on Bloomberg Radio.