Q&A Of The Day - Can Employers Treat Unvaccinated Employees Differently?
Each day I feature a listener question sent by one of these methods.
Email:brianmudd@iheartmedia.com
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Today’s entry: I always listen to your program, and I love how impartial you always are when presenting a topic. I know how you feel about getting the COVID-19 vaccine, and I also know that you respect other people's choice not to get it. I want to post a question for your segment, and the question is, can my employer, in my case (a local government), establish a policy that will benefit the employees that took the COVID-19 vaccine, but not the ones that didn't? Thank you very much for always keeping us informed with the truth.
Bottom Line: Thank you for appreciating my pragmatism. Now, as part of this note this listener sent a directive from the employer. The directive sent to employees indicated anyone who misses anytime due to COVID-19, including contracting it or even just having to isolate due to being exposed to it, won’t be eligible for paid sick leave if they’ve not been vaccinated. This sets up a clear line of demarcation. If you’ve been vaccinated with any of the authorized COVID-19 vaccines and you miss time due to COVID, you’re covered by sick leave. If you’re unvaccinated you’re not. So, is that legal? The answer is yes, with a caveat.
First, the benefit being denied to the unvaccinated, paid sick leave – isn't legally mandated in Florida. It’s an optional employer benefit. As an optional benefit the employer may dictate the terms under which it may be used. This is no different than employer sponsored healthcare plans which may stipulate different terms for those who smoke for example. Second, we’ve already seen more aggressive action taken in Florida at the hand of a government employer. After issuing a vaccine mandate, Palm Beach County Tax Collector Anne Gannon forced the resignation of eight of her employees over their refusal to get vaccinated. Now, I mentioned there’s a caveat to the ability of employer vaccination mandates. Constitutionally protected exclusions.
Under federal law there are protected classes against forced vaccinations. This has been reaffirmed regarding the COVID-19 pandemic as well. Here’s the current law governing COVID-19 vaccinations from the EEOC: (employers) must consider reasonable accommodations for workers who refuse a vaccine for religious or disability-related reasons, unless such accommodations pose an undue hardship on the employer's operations. Not only does that mandate exist, in the example of Palm Beach County’s Tax Collector’s forced resignations, use of one of those protected exemptions was more pervasive than those forced out for refusing the vaccine. A total of 20 employees at Anne Gannon’s office used a protected exemption to avoid receiving a COVID-19 vaccination and to retain employment.
So that’s the key in all of this. Yes employers, including government employers, can take substantial action to differentiate between the vaccinated and unvaccinated provided that they make “reasonable accommodations”, that’s the legal language, to allow for federally protected vaccine exclusions.