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She served as chief of staff and then senior policy adviser for the Labor Department’s Occupational Safety and Health Administration during the Obama administration. In supermarkets, factory settings, or warehouses, there’s really no way to segregate, said Debbie Berkowitz, the National Employment Law Project’s worker safety and health program director. The issue is moot for health-care providers because the Centers for Disease Control and Prevention continues to require all workers to wear masks, Greeson added.

“It’s just not worth the logistical hassle of trying to separate them,” said Greeson, director of occupational hygiene and safety for the Duke University Health System. Mixing them with unvaccinated workers wearing masks wouldn’t increase infections risks. Workers who are fully vaccinated and not wearing masks are already at an extremely low risk of infection, said Nicole Greeson, a board member of the American Industrial Hygiene Association. “Employers also should be mindful to proceed in a way that preserves the confidentiality of employee medical information,” she added.ĭepending on the workplace, dividing workers wouldn’t be feasible and might not make sense from a health and safety standpoint, some attorneys and occupational health specialists said. While the laws the agency enforces don’t specifically bar such an arrangement, employers “should be mindful of their obligations” under Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and other equal employment opportunity laws, spokeswoman Kimberly Dulic said in a statement. Equal Employment Opportunity Commission hasn’t updated its guidance to address separating vaccinated from unvaccinated workers. Duston said any company even contemplating a separation policy should survey workers to know which category each worker would fall in. Restaurants, retailers, and other public-facing operations could protect customers-and possibly get a marketing boost-by segregating workers and having maskless, inoculated staff on duty during the most profitable business hours, attorneys said.īut that strategy could also incur costs if a company’s best performers are also the ones who won’t get the jab, said Robert Duston, an attorney with Saul Ewing Arnstein & Lehr LLP, who represents employers. “If an employer’s going to do that and separate people in that way, they really need to be consistent in how they do it,” said Emily Nugent, a California solo practitioner who represents workers alleging discrimination. Workers can refuse the jab based on disability or religious belief, so employers could then face allegations of bias against those workers if they suffer negative consequences as a result of being segregated, she said. Klair Fitzpatrick, a partner with management-side law firm Morgan Lewis & Bockius LLP in Philadelphia. Segregating workers also raises potential legal risks, as some workers can’t get vaccinated due to health conditions or religious objections, said A.

Most employers can generally require workers to receive a Covid-19 vaccine, but business-wide mandates have been rare, leaving workplaces mixed with vaccinated and unvaccinated employees.Īs companies contemplate strategies for blended workforces, and states grapple with requiring proof of vaccination, some employers are seeking counsel on the practical and legal implications of separating employees based on inoculation status, lawyers said.Īlthough employers have a free hand to divide workers because vaccination status isn’t a legally protected category, such a policy would be burdensome to administer and likely generate resentment among workers on a topic that’s become politically charged, attorneys said. “It would be a stupendously bad idea to go down that road from an employee-relations perspective,” said Michael Blickman, a management attorney with Ice Miller LLP. Unvaccinated? Floor 2.Įmployers can legally separate vaccinated and unvaccinated workers-by shift or floor, for example-but lawyers are cautioning against it, following recent CDC guidance that says those fully inoculated against Covid-19 can mostly shed their masks.

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