I have a hypothetical scenario that does not involve myself. Just seeking info on a topic that's pretty specific and difficult to find succinct information on.
Let's say Bill works at homes services company and that company has decided to require vaccinations or masks if not vaccinated (second class employees). Bill is not vaccinated and bill will not become vaccinated. Bill also does not want to wear a mask because that's bill's choice being that there is no scientific proof that masks are effective against viruses and bill likes breathing air. Bill also works in a state (FL) that has banned vaccine passports though it is unclear how it affects employer/employee operations in terms of being asked to show proof since bill told his employer that he was, in fact, vaccinated. Bill thinks it is unlawful to require proof by an employer although bill could be wrong. It turns out, Bill is the only one of 50 or so employees who has been asked to show proof. Bill was not furnished with a detailed company announcement informing everyone that proof was necessary. However, bill was sent home until bill could provide his vaccine passport.
Bill wants to know a couple things and bill also understands he is not at a law office. Bill is curious if the FL EO 21-81 protects bill from his fascistic employer since it goes into detail about business/patron relations but aside from a general statement saying passports should not be required, bill cannot determine accurately how it affects his situation. There's a good chance it doesn't but would like input from others. Also, bill would like to know if this kind of company policy can be applied selectively (requiring proof aka a passport) and not be considered a form of discrimination or an unequal opportunity of employment.
Things to remember: bill does not wear masks. Period. The vaccination policy becomes a condition of employment if masks are refused, but cannot be considered "mandatory" given that the masking option exists. Bill is "vaccinated" as far as his employer is aware and bill can absolutely furnish his passport, but bill wants to fight back.
Any bit of info is welcome!
I am a VP of HR, and here are my thoughts. You are correct that bill does not have the high ground since there's a two option decision to make. Bill can, however, go the medical exemption route. If a medical exemption is not approved (assuming bill does have a bona fide health condition that warrants an exemption) and bill is fired, the employer would be the one liable to prove they did not fire bill because of his medical condition. Yes, Bill lives in a right to work state, but the employer still must not discriminate against Bill based on his medical condition because that is against federal and state law, and they better be able to prove they fired him for a non-discriminatory reason. If the employer cannot do that, then the employer is liable for discrimination. Legally, Bill actually has the burden of proof to show the employer did fire him for a discriminatory reason, and that is what lawyers would tell bill - but how it ACTUALLY works in a law suit is that if the employer can't show proof of firing Bill for a non-discriminatory reason instead, discrimination is assumed valid and the employer loses the law suit. Or realizes they will lose and settles with Bill out of court before a trial.
Thank you for this. So bill decided he needed to take one approach to this and stick with it. Bill wants to see what happens when liars are backed into a corner. Bill understands what he is doing is dishonest but he wouldn't do it if he actually believed he would be putting others in danger. So in this case, bill ultimately wants to know if (assuming EO 21-81 cannot protect him) his employer is legally allowed to require proof from bill and bill alone. Bill was not given a policy update by his employer that all vaccinated individuals must provide proof. He is only aware of a new policy stating employees must do one or the other (jab or mask). When confronted about his status changing, bill was asked to provide proof. But when bill asked if he is being singled out or what the official company policy is for those that have chosen to get the shot, he was not provided a response. Does this fall under a workplace discrimination law if it is not clear who is required to show proof? Can an employer selectively decide who has to show proof and who doesn't? And how clear does this need to be made to employees?
This is a tricky one. In the previous instance where Bill has an actual medical condition, Bill and other employees must be treated consistently. For example, an employer would want to require all employees to show proof, or no employees to show proof.
However, in this scenario there is no medical condition and they are just singling Bill out for for an unexplained reason. Ideally, employers should generally handle situations consistently and treat employees the same way. The reason for this is to avoid discrimination. But discrimination is only valid on the basis of age, gender, religion, race, national origin, disability, veteran status, etc. under federal law. In this specific scenario, it doesn't seem like any of those apply. In other words, in order for Bill to have a gender discrimination case, Bill would have to show that only all the males were required to provide proof. Therefore, Bill has been discriminated against. In the scenario where Bill just wants to not wear a mask, I can't find a way to legitimately apply discrimination laws.
Given that, I hesitate to provide advice other than the suggest you contact an attorney for guidance. It's clear the employer SHOULDN'T be singling out Bill, and I WANT to scream that it's discrimination because it certainly smells of it; but when I try to apply that to an event or reason that would stick for litigation in an at will state, I struggle to connect Bill's situation to grounds or standing to sue. Privacy comes to mind, for example, as it's an invasion of Bill's privacy to single out him alone to provide proof. But it does not violate any law in an at-will state. It's incredibly shitty, but not necessary illegal.
It definitely isn't ethical, but they may have found a loophole that's technically legal. I'm not sure. But it's terrible and I assure you I would NEVER treat employees that I support in my company this way. I'm afraid you've reached my level of legal expertise on the previous question, and I would not want to be responsible for misleading you. You need to talk to an attorney at this point.
That was good enough for bill. He thought it would be a stretch too but bill is not afraid to suggest to his fuhrer that they are creeping dangerously close to discrimination. Bill does have what they want ;) but he ain't giving it up until he's backed into a corner.
You rock, thanks!
You're most welcome! Good luck - hope everything works our for Bill. :)
Oh, and as for the Nuremberg code question, I have not seen any legal authority weigh in on this. The EEOC and Dept of Labor are silent completely on it, and employment law lawyers for companies are saying that avenue of argument is BS. I don't know if they're right or not, but that's what they are telling us (I've heard this from multiple law firms who represent my company directly). What it will take to determine that is case law. I haven't spent a ton of time looking into it myself yet, but I have not yet found any lawsuits on the books where employees are suing employers and using the Nuremburg code in their arguments and winning. There may be cases on the books that haven't progressed far enough yet, or I may just not be looking hard enough. But that's what I'm seeing so far.