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A Development of Note

By Alexander J. Cerbo, Esq.

 

As COVID-19 continues to grow, mutate, and spread like a California wildfire, the Equal Employment Opportunity Commission (EEOC) has released guidance which outlines, in detail, just how COVID-19 may qualify as a ‘disability’ under the Americans with Disabilities Act (ADA).

Alexander J. Cerbo

Alexander J. Cerbo

In its recent report, the EEOC clarifies that employees who are either asymptomatic or have mild COVID symptoms that resolve in a matter of weeks are not considered disabled under the ADA. These cases are not found to substantially limit a major life activity as they do not restrict an employee’s bodily functions for a prolonged period.

However, ‘long COVID,’ or cases that persist for several weeks or even months after the initial infection, may qualify as an ADA-recognized disability. Symptoms include ongoing fatigue, brain fog, difficulty concentrating, difficulty breathing, or shortness of breath. In addition, other health conditions caused by COVID, or pre-existing health conditions exacerbated by COVID (such as heart inflammation), are considered a disability if they limit a major life activity.

The EEOC cautions that a determination as to whether an employee’s COVID-19 case constitutes a disability should always be made on a case-by-case basis.

While employers should be mindful as to how they handle employees with COVID, the ADA does provide employers with a ‘direct-threat’ defense by which an employer may require an employee with COVID, or its symptoms, to refrain from physically entering the workplace during the CDC-recommended period of isolation. An employer will risk violating the ADA if they exclude an employee from the workplace based upon “myths, fears, or stereotypes,” particularly if the individual is no longer infectious.

EEOC guidance is clear that an employer does not automatically violate the ADA in taking adverse action against an employee if they have COVID-19. Employees must meet the criteria of an ‘actual’ or ‘record of’ disability to be eligible for a reasonable accommodation. An actual disability is a “physical or mental impairment which substantially limits a major life activity.” Record of a disability is when the person has a history of that disability.

Eligible employees are not automatically granted a reasonable accommodation — their disability must require it, and the accommodation requested must not pose an undue hardship on the employer. Employers may also request supporting medical documentation in determining whether to grant an employee’s accommodation request.

With COVID-19 cases on the rise once again, and the inception of the new, highly contagious Omicron variant, employers should continue to remain alert for future guidance from the federal government in this ever-evolving pandemic.

 

Alexander J. Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

 

Employment

Get the Vaccine or Get Fired?

By John S. Gannon, Esq. and Meaghan E. Murphy, Esq.

 

To mandate the COVID vaccine, or not to mandate?

John S. Gannon, Esq

John S. Gannon, Esq.

Meaghan E. Murphy, Esq

Meaghan E. Murphy, Esq.

That is the question on the minds of employers across the globe. As employment lawyers, we have been asked that question countless times by clients (and friends). Until about a month ago, all we could do was provide our best guess based on guidance and legal decisions related to other vaccines, like the flu shot. However, on May 28, the U.S. Equal Employment Opportunity Commission (EEOC) provided some comprehensive COVID-19 guidance that addresses this topic head-on.

The EEOC is the federal agency that enforces anti-discrimination laws applicable to workplaces. The news is good for Massachusetts employers considering a mandatory vaccine program. Some of the key takeaways for employers are described below.

 

Mandatory Vaccinations

The EEOC guidance declares in no uncertain terms that an employer can lawfully require employees to obtain a COVID-19 vaccination as a condition of returning to the workplace. Such a practice would not run afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Non-discrimination Act (GINA). There is one big catch: an employer mandating vaccines must reasonably accommodate employees who are unable or unwilling to get vaccinated because of a disability or sincerely held religious belief.

These employees might need to be excepted from the vaccine mandate if other safety measures can keep them and others safe. The EEOC provided examples of such accommodations, including requiring an employee to continue to wear a mask and socially distance while in the workplace, limiting contact with other employees and non-employees, providing a modified shift, permitting continued telework if feasible, conducting periodic COVID testing, or reassigning the employee to a vacant position in a different workplace.

Notably, employers should not assume that an employee does not require an accommodation relating to COVID simply because the employee is fully vaccinated. The guidance provides that an employer may need to accommodate an employee who is fully vaccinated for COVID if there is a continuing concern for heightened risk of severe illness from a COVID infection.

For an employee who is unwilling to obtain the vaccination because of a sincerely held religious belief under Title VII, employers should presume that the request is legitimate. The EEOC does make clear, however, that if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Employers presented with this issue should proceed with caution, as the EEOC will take a narrow view of such circumstances. Employers are required to engage in a similar ‘interactive process’ with employees who have sincere religious objections to vaccination and provide an accommodation that allows the employee to return to work where doing so does not present an undue hardship.

 

Vaccination Incentives

An employer may lawfully provide an incentive to its employees to obtain COVID-19 vaccination outside the workplace so long as the incentive is not so substantial as to be coercive. Unfortunately, the EEOC did not give any examples of what incentives would be considered ‘so substantial as to be coercive’ and also failed to clarify whether and to what extent an employer must provide a vaccine incentive to employees who are unable to obtain a vaccination due to a medical or religious-based reason.

 

Confidentiality

An employer’s request for self-disclosure of vaccination status, or for documentation or other confirmation that an employee has received a vaccination from a third party (such as a pharmacy or personal physician), is not a medical examination or a disability-related inquiry. As a result, employers may lawfully request this information without implicating the ADA or GINA.

With that said, employers should restrict access to vaccine-related information, apply safeguards similar to those applied to other types of sensitive personal information, and obtain appropriate consent from employees before disclosing vaccine-related information to third parties.

 

Legal Actions

To date, there has been one reported case dealing with mandatory vaccines in the workplace. Similar to the EEOC guidance, the case supports an employer’s right to mandate COVID vaccines.

In April, the Houston Methodist Hospital System in Texas issued a directive requiring that all employees be fully vaccinated by June 7 or they would be placed on a two-week suspension. Employees who were not vaccinated by the end of the suspension period would be terminated.

In late May 2021, more than 100 employees who were not vaccinated, and apparently did not qualify for a disability or religious exemption, filed a lawsuit against the hospital raising a number of claims, including wrongful termination. The judge dismissed the lawsuit entirely. In his written decision, the judge expressed his dismay with the plaintiffs for equating the threat of termination for refusing to get the COVID vaccination to the forced medical experimentation in concentration camps during the Holocaust, calling the comparison “reprehensible.”

Addressing an argument that the vaccine mandate was contrary to public policy, the judge wrote that the vaccine requirement “is consistent with public policy. The Supreme Court has held that (a) involuntary quarantine for contagious diseases and (b) state-imposed requirements of mandatory vaccination do not violate due process.”

 

Bottom Line

While this EEOC guidance and recent decision may seem like a big victory for mandatory COVID vaccines in the workplace, Massachusetts employers should be cautious in relying on them too heavily. The Commonwealth has its own anti-discrimination and public-policy laws, so it’s difficult to predict how this might play out in a state court or administrative proceeding.

In other words, while the decision is encouraging for Massachusetts employers who want to require vaccines, it is important to check in with experienced labor and employment counsel before implementing a mandatory vaccine program.

 

John Gannon and Meaghan Murphy are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

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