Dare We Ask Our Coworkers “Are You Safe”?

Question:

Note: this question came in from the “Ask a Coach” portal

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.

If you found this post helpful, you might find these posts useful concerning how vaccinated and nonvaccinated employees skirmish and the legal aspects of vaccination management, https://workplacecoachblog.com/2021/03/vaccinated-employees-skirmish-with-unvaccinated-employees-new-employer-protocols/, https://workplacecoachblog.com/2021/02/mandatory-covid-vaccination-new-guidance-update/, https://workplacecoachblog.com/2021/01/covid-vaccination-update-in-light-of-the-vaccines-emergency-use-authorization-status/, https://workplacecoachblog.com/2020/12/mandatory-covid-vaccinations-the-rules/

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4 thoughts on “Dare We Ask Our Coworkers “Are You Safe”?

  1. OM*G! This is the most insane bunch of cross-purpose, confusing, selective, unproductive gibberish I’ve ever read! But it’s not your fault at all.
    Please, ANYONE, explain to me how anything (vaccination, for example) can be excused for any reason, and tolerated in a situation that exposes ALL, regardless of their affiliations, maladies, attitudes, race/color/creed! NONE of those ‘exceptions’ offer any protection for all of the people that are exposed to those who – for ANY REASON – don’t participate.
    It is INSANE to suggest that any of the ‘qualifying reasons for exemption or exception’ as presently permitted are fair, reasonable, equitable or possible – it’s like saying that just three people in a sinking boat somehow will never get their feet wet – NOT! If someone does not vaccinate (the current ‘special exemption situation’) because they (fill in the blank) THAT DOES NOT MAKE THEM ANY LESS LIABLE TO GET OR PASS ALONG THE VIRUS! It just legally allows them to infect any- and everyone they come into contact with. I defy anyone to successfully argue that.

    Quite frankly, this ‘politically correct’ stuff has reached a point where every single exception allowed (or provided, or legally required) for any one person (or group) is most likely an infringement on the other 99% of the people they interact with.
    An NO explanation, no rules, no laws, no regulations can change those facts. Dream on if you think there is a way to make this work fairly and reasonably for everyone – THAT is impossible.

  2. Dan, thanks, and thanks for absolving me. I agree that someone unvaccinated exposes others to risk. When I’ve been called by individual clients, I’ve suggested that unvaccinated individuals with legitimate reasons be allowed to work remotely, for everyone’s sake.

  3. Great distinctions here about simply asking other employees if they’ve been vaccinated to badgering them about their reasons for why not, to medial-privacy issues when more information that that is sought or revealed.

  4. These are unprecedented times to be sure. Never in my life did I think our generation would be living through a pandemic, yet here we are. Going from telecommuting over the last year to integrating back into the workforce presents serious considerations. I have seen considerate employer questionaries like the ones you mentioned – to emails that contain verbiage such as “Tell on co-workers who come to work sick” which creates a toxic work environment. Employers who offer only PTO may unwittingly be incentivizing employees to come to work when they are not feeling optimal. We’ve learned that vaccines don’t stop COVID from re-occuring. Also, we are heading into hay fever season with Birch pollen…is someone suppose to stay home because of allergies? The symptoms for COVID seem similar to many other non-threatening symptoms, but now employees are being asked to stay home if they feel any COVID symptoms, which could merely be allergies. Given an average two week PTO, this may not bode well for those prone to allergies at certain seasons. At any rate, everyone- employers and employees are hyper focused on COVID leaving a whole lot of other work place issues kicked to the curb.

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