Is it discrimination in the workplace if vaccine availability is not an issue?

I overheard a group of employees chatting over taking the vaccine. It appears that they had all taken the Covid-19 vaccine. Their supervisor was telling them that there will come a time that only the vaccinated would be preferred to go to work whenever a lockdown or quarantine restriction would be imposed. To that, the employees teased their supervisors that they were volunteering as early as now for those shifts when the time comes since they were already vaccinated.

Since the pandemic started, several workdays have been lost resulting in loss of income opportunity by many employees. In turn, this resulted in several finding themselves swimmimg in debt trying to make ends meet. With no end in sight, it was no surprise that the employees volunteered themselves for the workshifts should lockdowns or quarantine restrictions happen again.

What lingered on my mind is the thought: what if there was no issue on vaccine availabity – would it be discriminatory for the employer to choose vaccinated employeees in case of lockdowns or quarantine restrictions?

Currently, there are two (2) main reasons against the employer mandating that only vaccinated employees should report for work.

One, there isn’t enough vaccines. While many employees would want to be vaccinated, there just isn’t enough supply in many areas or localities.

Two, it is a new vaccine. This relates to the vaccine hesistancy which we will not go into detail here as it is an entirely separate discussion.

For our current purposes, the assumption is that there is no longer an issue on the vaccine (as with shots for measles or polio) and there is an abundance of vaccine.

Clearly, Covid-19 is not going away. We all have to live with it until somehow it fades in our collective consciousness as with the Spanish flu.

So, would it be discriminatory for an employer to choose vaccinated people to go to work whenever there is a shortage of workdays or workhours due to lockdowns or quarantine restrictions?

No, it would not be discriminatory in our specific context because the employer is justified.

First, it is the employer’s responsibility to protect the workforce under laws and regulations pertaining to Occupational Safety and Health Standards (OSHS). That includes placing unvaccinated employees away from harm’s way. Thus, it is more prudent and reasonable to engage vaccinated employees when there is a clear and present danger of acquiring the virus in times which required lockdowns or quarantine restrictions.

Second, it is equally the responsibility of the employer to the public at large to avoid spreading Covid-19 via unvaccinated employees who may be carriers, whether or not they are aware.

It is a challenging time and difficult decisions have to be made by employers. So long as actions are justified under the circumstances, they may take a valid course of action to protect their business, people, and the public.