VERIFY Weekly: COVID-19 vaccines and the workplace

As the year has gone on, more businesses have brought employees back to the office. But with heightened health concerns because of COVID-19, many businesses have enforced safety precautions like masking or vaccine mandates.

VERIFY viewers have had questions about what rights employers and workers have when it comes to COVID-19 restrictions. So, we answered a few of those questions in this week’s “VERIFY Weekly” feature. You can watch the full video on our YouTube page here.

THE QUESTION

Is it legal for employers to require workers to get the COVID-19 vaccine?

THE SOURCES

• Equal Employment Opportunity Commission (EEOC)
• Charles Johnson, labor and employment lawyer with Robinson Bradshaw in Charlotte, North Carolina

THE ANSWER

Yes, workplace vaccine mandates are legal.

WHAT WE FOUND

In May, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance related to COVID-19, vaccines and the workplace. As part of the guidance, the EEOC said federal Equal Employment Opportunity laws don’t prevent employers from requiring workers physically entering the workplace to get vaccinated against COVID-19.

Charles Johnson, a labor and employment lawyer in Charlotte, North Carolina, said employers must provide accommodation for employees who have religious or disability-related reasons for not getting vaccinated. But otherwise, employers can generally require vaccinations.

“Governments, employers and others can mandate vaccines in the interest of public health and safety,” he said. “And there are very few limitations.”

THE QUESTION

Can you be denied unemployment benefits if you’re fired for not getting a mandated vaccine?

THE SOURCES

• Diane Seltzer, principal, The Seltzer Law Firm
• John T. Harrington, principal, The Employment Law Group

THE ANSWER

Yes, in most areas of the U.S., if you are fired for breaking a company policy, you can be denied unemployment benefits.

WHAT WE FOUND

Unemployment payments are afforded to Americans who lose their jobs through no fault of their own. When a business closes or issues mass layoffs, the people who are let go are often eligible for weekly benefits.

However, someone fired for breaking a company policy, big or small, can be denied benefits, employment attorney John T. Harrington explained.

"Even something as simple as a dress code that says you have to wear a tie, and that's the company's policy, and you say, 'I don't believe in wearing a tie, so I'm not going to do it.' That's insubordination," Harrington said. "It's misconduct, and it would likely disqualify you from receiving unemployment benefits."

For example, the Maryland state code lists “gross misconduct” as a disqualifying factor. Willfully refusing a COVID-19 vaccine required by an employer would qualify as "gross misconduct," according to attorney Diane Seltzer.

THE QUESTION

Is it legal for a company to separate vaccinated and unvaccinated employees in a workspace?

THE SOURCES

• Equal Employment Opportunity Commission
• Margaret Foster Riley, professor of law at University of Virginia School of Law
• Charles Johnson, labor and employment lawyer

THE ANSWER

Yes, it is legal. Businesses can undertake precautions to protect employees and customers, as long as those precautions aren’t discriminatory.

WHAT WE FOUND

Labor and employment lawyer Charles Johnson said it’s legal for an employer to require vaccinated and unvaccinated employees to sit in separate workspaces.

“Because they [an unvaccinated individual] cause a greater risk to the workplace, and the public, they can be restricted in their movements and be required, for example, to wear masks or engage in other prescriptive behaviors that would help to prevent the transmission of COVID-19,” he said.

In May, as the mask mandates were evolving across the U.S., Margaret Foster Riley, a professor of law at the University of Virginia School of Law, told VERIFY businesses can undertake precautions to protect employees and customers, as long as those precautions aren’t discriminatory.

The EEOC says employers can enforce rules that don’t discriminate on the basis of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability or genetic information.

THE QUESTION

Is it a HIPAA violation if a business asks customers about their vaccination status?

THE SOURCES

• U.S. Department of Health and Human Services (HHS)
• Glenn Cohen, professor at Harvard Law School
• Kayte Spector-Bagdady, lawyer, bioethicist and associate director at University of Michigan’s Center for Bioethics and Social Sciences in Medicine

THE ANSWER

No, most businesses would not violate HIPAA by asking about a customer’s vaccination status.

WHAT WE FOUND

While HIPAA does protect medical information, it only applies to covered entities, such as health care providers and health insurers, and their business associates, according to the U.S. Department of Health and Human Services.

The rules don’t extend to most businesses, according to Glenn Cohen, a professor at Harvard Law School.

“Because the average business is not a covered entity or a business associate of a covered entity within the meaning of HIPAA, the statute does not prohibit them asking them about vaccination status,” Cohen told VERIFY.

Kayte Spector-Bagdady, a lawyer and bioethicist who is also the associate director at the University of Michigan’s Center for Bioethics and Social Sciences in Medicine, said there is sometimes a misunderstanding of what HIPAA does.

“People often feel like HIPAA protects them from being asked about their medical information, or prohibits other people from asking about their medical information,” Spector-Bagdady said. “Neither is true. HIPAA prohibits health professionals, such as your doctor, from sharing your identified health information without your permission in most circumstances. People can always ask about your health information, and you can almost always decline to answer. But not answering health questions might come at a cost – such as not being able to enter your workplace or board a plane.”

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