Ask The Lawyer By: Daniel A. Gwinn, Esq. Employee Barred From Lunch Room?

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QUESTION: My wife is an assistant at a podiatrist’s office. She has not been vaccinated against Covid-19. Recently, all staff received an email stating that workers are encouraged to get vaccinations against Covid-19. Staff must continue to wear masks, but are allowed to remove them to eat in the lunch room. However, people who have not been vaccinated are not allowed to use the lunch room at all. Isn’t this discrimination?

ANSWER:     Individuals in the United States are protected from employment discrimination on the basis of race, national origin, color, religion, disability, sex, sexual orientation or gender identity and age. Many states have expanded this list to prohibit additional forms of discrimination, for instance that based on marital status, or weight — but vaccination status is not a protected category.

The fact is, if your wife chooses not to be vaccinated, her employer may exclude her from the break room.

There are a couple of exceptions that could, conceivably, apply: If your wife is unable to receive the vaccine for medical reasons (and she would require a doctor’s note stating this) the employer’s decision to prohibit her from using the breakroom at all might be viewed as discrimination on the basis of disability. If your wife is a devout follower of a bona fide religion that prohibits vaccinations (and not just COVID vaccinations), her total exclusion from the break room might be viewed as religious discrimination. However, based on the information you’ve provided, neither of these exceptions would seem to apply. Since your wife is working outside the home, she is unlikely to suffer from a medical condition that would prohibit her from receiving the vaccine; if she has received other vaccinations in the past, any claim to a religious belief that prevents her from getting this particular vaccine might be suspect.

Experts say that the best thing for most people to do is to get the vaccine, especially now, as the more contagious, more dangerous Delta variant of COVID is becoming more common. While being fully vaccinated will not guarantee your wife will not get the Delta variant, the likelihood that she would be afflicted by a severe form of the disease is almost nil. Most vaccines provide strong protection against contracting the Alpha variant.

Since the vaccines became available late last year, almost 200 million people in the U.S. have received at least one dose of the Pfizer, Johnson & Johnson or Moderna vaccines. In that time, the vaccines have proven to be both safe and effective. The number of cases being reported has plummeted from an average of around 250,000 per day in January, to an average of about 13,000 per day last week; deaths have decreased from a January average of about 3,000 per day to about 190 per day. The number of cases and deaths, per capita, are highest in areas with low vaccination rates.

Internet claims that the vaccine is more dangerous than the disease have been thoroughly debunked. While there have been a few reports of allergic reactions, the numbers are very small — just 1 in 900,000. While 0.0017 percent of those who received the vaccine later died, the deaths are not clearly caused by the vaccine. In contrast, of the 33,509,001 people who have tested positive for COVID in the United States (roughly 10 percent of the population), more than 600,000 have died — roughly 1.7 percent of those testing positive. Millions more recovered, but continued to suffer impaired health.

The several COVID-19 vaccinations available received federal approval for emergency use — vastly different from approval for “experimental use” — only after they had been thoroughly vetted (the FDA is currently considering giving at least two of the vaccines full approval). A federal court in Texas recently dismissed a lawsuit that challenged an employer’s vaccine requirement as unconstitutional (and that claimed the vaccines were “experimental” drugs); other lawsuits are expected to meet the same fate.

Politicians on both sides of the political aisle, from former president Donald Trump to President Joe Biden, have shown their faith in the safety of the vaccine by receiving it.

Think of it this way, if a co-worker had been exposed to, and could carry, a potentially debilitating and life threatening disease, would you want him or her sitting around in your lunchroom?

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile
[email protected]