By Allen Smith, J.D.
Employers disciplining employees who lie about getting COVID-19 vaccinations should do so consistently and thoughtfully to avoid liability. But don’t let misrepresentations go unaddressed. This can hurt the workplace, resulting in returns to the office that are too soon or too slow. Plus, such lies can make co-workers more prone to be lax about COVID-19 safety measures.
As a practical matter, whether a worker’s lie about being vaccinated is material and warrants investigation and remedial action may depend on the employer’s policy on vaccination, said J.T. Holt, an attorney with Reed Smith in Pittsburgh. For example, an employer may view a worker’s misrepresentation about being vaccinated as more significant if the employer mandates vaccination, rather than merely encourages it.
Dangers to Co-Workers
Nonetheless, even if the employer only encourages vaccination, “an employee who lies about being vaccinated is more dangerous to co-workers than an employee who is not vaccinated, because it could likely lull other employees into a sense of safety,” said Deborah Kelly, an attorney with Manatt in Washington, D.C.
“Getting away with that lie could encourage that employee and other employees to be more lax in complying with workplace safety protocols,” such as wearing masks, maintaining a safe distance and using antibacterial lotion, she noted.
The potential liability to the employer could be greater if the lying worker becomes infected with COVID-19 and infects others. “The employer could be charged with negligence for not being sufficiently aggressive in ensuring that employees provide sufficient proof of an actual vaccination, and thereby failed to provide a safe workplace as required under applicable federal and state law,” Kelly said.
If more than one employee is suspected of lying about vaccination, the employer should address the misrepresentations consistently with each worker, Holt said. Likewise, any decisions regarding discipline should be made consistently, he added. “That is not to suggest that all of the employees must be disciplined and receive the same type of discipline, because each employee’s individual circumstances may differ and the employer might reach different conclusions through its investigation.”
Appropriate disciplinary action will depend on a number of factors, Arnold said, including:
- The particulars of the employer’s disciplinary policy, such as whether there is progressive discipline.
- The employee’s prior disciplinary history.
- The seriousness of the infraction, such as the misrepresentation placing a client at risk.
In jurisdictions where asking for verification of vaccination is lawful, such verification is similar to examining documents in support of an I-9 form or documentary proof required by employers in other circumstances, such as a Family and Medical Leave Act medical certification form from a treating physician.
“If the employee cannot produce the appropriate supporting document or, upon further questioning, acknowledges that she or he did not tell the truth, the employer should treat the situation as it would other serious misrepresentations, with discipline up to possible termination of employment,” Kelly said.
However, employers should tread carefully. When investigating whether someone has lied, make sure to hear the employee’s side of the story, cautioned Christine Walters, J.D., SHRM-SCP, an independent HR and employment law consultant with FiveL Co. in Westminster, Md.
Risk of Lawsuits
Any inconsistency in discipline exposes the employer to potential liability for unlawful discrimination, said Bob Horton, an attorney with Bass, Berry & Sims in Nashville, Tenn. Claims of unlawful discrimination also may arise over the basis for suspicion that a worker has not been vaccinated and what proof of vaccination the employer accepts.
“Employers should be thoughtful and careful about whether they are able to articulate a reasonable objective basis for the suspicion, such as an employee is overheard stating that he or she forged a vaccination card,” Horton said.
If the employer believes it has an objective basis for the suspicion, the next challenge is verification. The Equal Employment Opportunity Commission states that requiring proof of vaccination does not violate employees’ rights under the Americans with Disabilities Act and Genetic Information Nondiscrimination Act.
“But some states are now prohibiting vaccine passports,” Horton said.
“There may be differences among the many jurisdictions,” Holt explained. For example, while some states may permit employers to require workers to present vaccination cards, Florida has recently taken a stance against such practices, he said.
Florida Executive Order 21-81, signed by Gov. Ron DeSantis on April 2, promotes the significance of individual privacy interests relating to COVID-19 vaccination records and COVID-19 vaccine passports, and prohibits mandatory disclosure of such records.
Foundation of Trust
“As the COVID-19 pandemic has highlighted, everyone in a workplace, from front-line employees to upper management, shares responsibility for keeping each other safe,” said Andrew Sherrod of Hirschler Law in Richmond, Va.
“Trust is — and always has been — another key driver in maintaining a positive culture with a company,” he said. “So as vaccinations become more prevalent and companies are able to bring more employees back together in person, that trust and spirit of common purpose must continue. If an employee breaches that trust by lying about a vaccination, there must be consequences to ensure the company values are maintained.”
Do employers undermine trust by requiring proof of vaccination? “Requiring proof of vaccination may be the right decision for some employers, but it should be a decision that is arrived at after careful consideration of a variety of issues,” such as the return-to-office plan, said Aimee Delaney, an attorney with Hinshaw & Culbertson in Chicago.