The U.S. Equal Employment Opportunity Commission has recently issued updated guidance regarding COVID-19, the Americans with Disabilities Act (ADA), the Rehabilitation Act and other EEO laws.
The most important update from the September guidance is that the EEOC has agreed with the Departments of Health and Human Services and Justice and now recognizes that “long COVID” may be a disability under the ADA and Section 501 of the Rehabilitation Act. This is significant as employers will likely have to be cognizant of the fact that just because an individual is treated for COVID-19 and seems to be recovered, there may be continued risks under the ADA and Section 501 of the Rehabilitation Act. In other words, the firing or change in employment status of an employee with “long COVID” may result in an action pursued by the EEOC.
In addition to the above, the EEOC also retained the previous guidance from May 28, 2021, with some updated guidance on vaccinations.
With respect to vaccinations, the question arises of whether or not, under the ADA, Title VII, and other federal employment nondiscrimination laws, an employer may require all employees that physically enter the workplace to be vaccinated for COVID-19. The EEOC has made it clear that absent any reasonable accommodations under Title VII or the ADA, the federal EEO laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated. Reasonable accommodations under Title VII and the ADA include those employees who argue they cannot get vaccinated because of a disability or sincerely held religious belief, practice or observance unless proving such accommodation would pose an undue hardship to the operation of the employer’s business. Of course, as with any employment policy, employers cannot apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.
Reasonable accommodations may include allowing unvaccinated employees to enter the workplace with face masks, practicing social distancing at all times during work, working a modified shift, being given the opportunity to telework, obtaining periodic testing or accepting reassignment.
Employers may also provide information to employees and family members to educate them regarding vaccines, the benefits of vaccinations and to address common questions or concerns regarding the vaccination. In addition to providing information to employees, employers may also make vaccinations available to unvaccinated workers in the workplace. Employers may also, under certain circumstances, incentivize their employees to receive COVID-19 vaccinations.
With specific respect to the ADA, it is important to note at the outset that employers must maintain the confidentiality of all employee medical information, including documentation or any other form of confirmation of the vaccine. In other words, an employer must keep any documentation or confirmation of vaccination confidential and stored separately from the employee’s personnel files.
The EEOC has provided guidance regarding whether an employer may require that all employees be vaccinated to enter the workplace, even though it knows some employees are unable to get vaccinated due to a disability.
Under the ADA, employers may require individuals with disabilities to meet a qualification standard, such as a safety-related standard requiring vaccination. The standard must be job-related, consistent with business necessity, and apply to all employees. If an employee is unable to meet the qualification standard because of his or her disability, the employer may not require compliance for the employee unless it is able to demonstrate that the employee would create a “direct threat” to the health or safety of the employee or the workplace. A direct threat is defined as a “significant risk of substantial harm” that can’t be eliminated or reduced by reasonable accommodation. There are a number of factors that the employer must assess to determine if an employee poses a direct threat to the workplace. The EEOC recommends that employers notify all employees that it will consider requests for reasonable accommodations based on disability on an individualized basis when introducing vaccination policies.
If an employee requests a reasonable accommodation for a disability, managers and supervisors must know how to both recognize an accommodation request and know whom to refer the request to for full consideration. The EEOC recommends that employers should provide managers and supervisor with clear instructions about handling accommodation requests related to a mandatory vaccination policy. The ADA requires employers to offer available accommodations if such accommodations exist and if they don’t pose an undue hardship, which is defined as a significant difficulty or expense. That being said, it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting such accommodation.
With respect to voluntary vaccination programs, if an employer offers such a program to employees, the employer is not required to show that the pre-vaccination screening questions are job-related and consistent with business necessity, provided that employees’ decisions to answer the questions are voluntary. Of course, the ADA prohibits any employers from taking adverse actions against employees for refusing to participate in such a voluntary employer-administered vaccination program.
In addition to the above, if employers offer voluntary vaccinations to employees, the employer must comply with federal employment nondiscrimination laws. An example of this scenario could be an employer offering voluntary vaccinations to certain employees based on national origin, as this is a protected basis under the EEO laws and would be impermissible.
A frequent question that arises from employers is whether or not the ADA prevents employers from requesting or asking about documentation that an employee is vaccinated. It is clear from the EEOC that asking an employee whether they obtained the vaccination is not a disability-related inquiry under the ADA. However, further probing into why an employee is not vaccinated may certainly constitute an ADA violation, and it is recommended that employers be very cautious when asking follow-up questions.
The EEOC guidance is clear that absent undue hardship, employers must provide a reasonable accommodation to employees once the employer is on notice of the employee’s sincerely held religious belief, practice, or observance that prevents the employee from getting the vaccine. This also applies if the employee request to wait until an alternative version or specific brand of vaccine is available based on a religious accommodation. EEOC guidance goes as far as advising that employers should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.”
With respect to accommodations for religious exemptions, employers should consider all possible accommodations, including telework and reassignment.
If an employer seeks to challenge a religious accommodation request, it must either prove that doing so would create an “undue hardship,” or that it has facts that constitute an objective basis for questioning the religious nature or sincerity of a particular belief, practice or observance. Undue hardship is defined as having more than a minimal cost or burden on the employer. It should be noted that this standard is less stringent than the ADA’s undue hardship standard.
Despite the fact that the CDC is now recommending vaccinations for everyone aged 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future, some pregnant employees may seek job adjustments or request an exemption from a vaccination requirement.
When employees seek exemptions from a vaccination requirement due to pregnancy, employers must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. In other words, pregnant employees may be entitled to job modifications, including telework, changes to work schedules or assignments and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.
More recently, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) that will require all covered employers with 100 or more employees to either mandate their workforce be vaccinated or submit the employees to weekly testing. However, on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order blocking the ETS from taking effect pending further review.
In conclusion, employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic continues to evolve. Therefore, employers should continue to follow the most current information on maintaining workplace safety. Employers are encouraged to speak with an attorney to stay up to date regarding the most current guidance. The Chartwell Law Employment and Labor Practice is available to assist during these trying times.