Be alert to new legal risk: vaccine-status harassment.

AuthorHyman, Jon
PositionWHAT I WOULDN'T DO: Legal Updates from HR's Trenches

I can't believe you got vaccinated.

It's an experimental drug that I'm not injecting into my body. All the government wants to do is control us, and you're letting them by submitting to these shots. Sheeple!


I can't believe you're not getting vaccinated. Don't you care about protecting yourself and others? This vaccine has been tested, and it's safe and effective. You're not doing your part. Selfish!

Some version of this drama is likely playing out in your workplace. And it must stop, ASAP.

For starters, one's choice not to get vaccinated might be because of an underlying physical or mental impairment, a pregnancy (or hope to become pregnant) or a sincerely held religious belief.

Because each of those categories are protected classes under the ADA or Title VII, harassing a co-worker because of his or her unvaccinated status might cross the line into unlawful protected-class harassment. In that case, an employer might have honest-to-goodness liability for allowing such harassment to continue uncorrected.

Regardless, whether another person is or is not vaccinated is really none of anyone's business. Vaccination status is confidential medical information under the ADA (not HIPAA, which, contrary to popular misconceptions, does not regulate the employer/employee relationship).

It is an employer's business whether unvaccinated employees are following the CDC's guidelines and keeping their masks on while at work. But whether they have gotten the Pfizer, Moderna, or J&J jab? Not a co-worker's business. And certainly not something anyone should be harassing or bullying anyone else over. Civil discourse is one thing...

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