Hope everyone had a great Memorial Day holiday weekend. Today’s blog entry talks about the latest update from the EEOC with respect to Covid-19. All the labor and employment law bloggers are blogging on it, so I decided to blog on it as well and offer my own perspective. As with previous blog entries of mine on the subject, what I have done is cut-and-paste the new sections of the guidance and then underneath the section put in my own comments. So, the blog entry is not divided into the usual traditional categories. The only new piece to the EEOC guidance comes in §K, which is at the very end of the EEOC document, pages 28-40.

COVID-19 Vaccinations:  EEO Overview

K.1.   Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?    (5/28/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below99185186200201.  These principles apply if an employee gets the vaccine in the community or from the employer.

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)).  Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to 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.

 

Thoughts/takeaways: As I mentioned previously in this blog entry186187201202, federal EEO laws do allow for employers to mandate Covid-19 vaccinations. An employer does have to make reasonable accommodations for employees with disabilities or for those with sincerely held religious beliefs. Keep in mind that reasonable accommodations for persons with disabilities and reasonable accommodations for people having sincere religious beliefs are not at all the same thing, at least for now. Employers do want to be careful about policies that have a disproportionate effect on protected groups.

K.2.   What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (5/28/21)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

 

Thoughts/takeaways: There is legislation currently pending in Congress, the Pregnant Workers Fairness Act, which would take the ADA paradigm and place it on pregnancy. Until that legislation becomes law, as a matter of preventive law it is a good idea to put that ADA paradigm onto pregnancy anyway. As mentioned immediately above, keep in mind that reasonable accommodations has a completely different meaning for dealing with a person with a sincere religious belief v. a person with a disability.

K.3.  How can employers encourage employees and their family members to be vaccinated without violating the EEO laws, especially the ADA and GINA? (5/28/21)

Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21100187188202203.  As of May 2021, the federal government is providing vaccines at no cost to everyone ages 12 and older.

There are many resources available to employees seeking more information about how to get vaccinated:

  • The federal government’s online vaccines.gov101188189203204 site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov102189190204205 for Spanish).  Individuals also can text their zip code to “GETVAX” (438829) – or “VACUNA” (822862) for Spanish – to find three vaccination locations near them.
  • CDC’s website offers a link to a listing of local health departments103190191205206, which can provide more information about local vaccination efforts.
  • In addition, the CDC offers background information for employers about workplace vaccination programs104191192206207. The CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting the COVID-19 vaccine.  (Although originally written for essential workers, it is useful for all workers.)   See CDC’s Essential Workers COVID-19 Toolkit105192193207208.  Employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance or to ensure nondiscrimination for an employee who is pregnant.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no or limited English and find it difficult to make an appointment for a vaccine over the phone. The CDC operates a toll-free telephone line that can provide assistance in many languages for individuals seeking more information about vaccinations: 800-232-4636; TTY 888-232-6348.
  • Some employees also may require assistance with transportation to vaccination sites. Employers may gather and disseminate information to their employees on low-cost and no-cost transportation resources available in their community serving vaccination sites and offer time-off for vaccination, particularly if transportation is not readily available outside regular work hours.

Thoughts/takeaways: Nothing to add here.

General

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (5/28/21)

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

 

Thoughts/takeaways: This particular question raises the important point that Covid-19 information must be kept confidential under the ADA. That means not only keeping it confidential but also storing it separately from the employee’s personnel files.

Mandatory Employer Vaccination Programs

K.5.  Under the ADA, may an employer require a COVID-19 vaccination for all employees entering the workplace, even though it knows that some employees may not get a vaccine because of a disability? (12/16/20, updated 5/28/21)

Yes, provided certain requirements are met.  Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination.  However, if a  particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  29 C.F.R. 1630.2(r)106193194208209.  This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job.  The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.  Such medical knowledge may include, for example, the level of community spread at the time of the assessment.   Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.   Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.  Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.  (See also K.12107194195209210 recommending the same best practice for religious accommodations.)

 

Thoughts/takeaways: 1) An employer can absolutely require Covid-19 vaccination for its current employees providing that standard is job-related and consistent with business necessity, such as by way of example a safety-related standard requiring Covid-19 vaccination. Just what is job-related and consistent with business necessity is something that we have discussed numerous times before in our blog, such as here195196210211; 2) The employer will have to make “reasonable accommodation,” for those with disabilities or for those with sincerely held religious beliefs; 3) if a person with a disability cannot be vaccinated, then the employer has to decide whether that person is a direct threat and whether any reasonable accommodation can be made short of that direct threat point. Direct threat is something that we have discussed before quite a few times, such as here196197211212; 4) when figuring out whether a direct threat exists, CDC guidances are useful as well as information from the employee’s health care provider. With respect to CDC guidances, they have been all over the place, so you would want to have those analyzed closely; 5) Figuring out direct threat also means looking at the employee’s individual work environment, such as: whether the employee works alone or with others or works inside or outside; available ventilation; frequency and duration of direct interaction the employee’s typically has with other employees and nonemployees; number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing; and 6) remember that direct threat is a term of art and always requires an individualized analysis.

 

K.6. Under the ADA, if an employer requires COVID-19 vaccinations for employees physically entering the workplace, how should an employee who does not get a COVID-19 vaccination because of a disability inform the employer, and what should the employer do?   (12/16/20, updated 5/28/21)

An employee with a disability who does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, known as a reasonable accommodation.  To request an accommodation, an individual does not need to mention the ADA or use the phrase “reasonable accommodation.”

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability108197198212213 and know to whom to refer the request for full consideration. As a best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer.  This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.

In discussing accommodation requests, employers and employees may find it helpful to consult the 109Job Accommodation Network (JAN) website198199213214 as a resource for different types of accommodations.  JAN’s materials about COVID-19 are available at 110https://askjan.org/topics/COVID-19.cfm199200214215.  Employers also may consult applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources111200201215216.  Even if there is no reasonable accommodation that will allow the unvaccinated employee to be physically present to perform his or her current job without posing a direct threat, the employer must consider if telework is an option for that particular job as an accommodation and, as a last resort, whether reassignment to another position is possible.

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p).  Employers are advised to consider all the options before denying an accommodation request.  The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.  Employers may rely on CDC recommendations112201202216217 when deciding whether an effective accommodation is available that would not pose an undue hardship.

Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation113202203217218 or to retaliate against an employee for requesting an accommodation114203204218219.

 

Thoughts/takeaways: 1) it is up to the employee to request an exemption from a Covid-19 vaccination requirement; 2) requesting that exemption does not need magic words; 3) managers and supervisors need to know how to respond to particular employee requests for exemption from any Covid-19 vaccination requirements; 4) never forget about the interactive process and make sure you get the interactive process right, as we discussed here204205219220; 5) the ADA makes it unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation; 6) significant difficulty or expense is a much higher standard- see 29 C.F.R. 1630.2(p)205206220221-then a plain reading of the term would suggest.

K.7.  If an employer requires employees to get a COVID-19 vaccination from the employer or its agent, do the ADA’s restrictions on an employer making disability-related inquiries or medical examinations of its employees apply to any part of the vaccination process? (12/16/20, updated 5/28/21)

Yes. The ADA’s restrictions apply to the screening questions that must be asked immediately prior to administering the vaccine if the vaccine is administered by the employer or its agent.  An employer’s agent115206207221222 is an individual or entity having the authority to act on behalf of, or at the direction of, the employer.

The ADA generally restricts when employers may require medical examinations (procedures or tests that seek information about an individual’s physical or mental impairments or health) or make disability-related inquiries (questions that are likely to elicit information about an individual’s disability).  The act of administering the vaccine is not a “medical examination” under the ADA because it does not seek information about the employee’s physical or mental health.

However, because the pre-vaccination screening questions are likely to elicit information about a disability, the ADA requires that they must be “job related and consistent with business necessity” when an employer or its agent administers the COVID-19 vaccine.  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.  (See general discussion in Question K.5116207208222223.)  Therefore, when an employer requires that employees be vaccinated by the employer or its agent, the employer should be aware that an employee may challenge the mandatory pre-vaccination inquiries, and an employer would have to justify them under the ADA.

The ADA also requires employers to keep any employee medical information obtained in the course of an employer vaccination program confidential.

 

Thoughts/takeaways: 1) the ADA scheme dealing with medical exams also applies to disability -related inquiries. See this blog entry208209223224 for example; 2) pre-vaccination screening questions are likely to elicit information about a disability and therefore, are a disability related inquiry; 3) any disability related inquiries of current employees must be job-related and consistent with business necessity; 4) an employer must have a reasonable belief based upon objective evidence that an employee not answering the questions cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace; 5) employee medical information obtained in the course of an employer vaccination program must be kept confidential; 6) an employer may want to make sure that neither itself nor its agents do the vaccines for its employees if it wants to avoid possible exposure to disability related inquiries. Of course, bigger companies may not see this as much of an issue. 7) just what is a disability related inquiry can be a bit of a moving target. If you have persons with disabilities involved in that analysis, that certainly will help.

Voluntary Employer Vaccination Programs

K.8.  Under the ADA, are there circumstances in which an employer or its agent may ask disability-related screening questions before administering a COVID-19 vaccine without needing to satisfy the “job-related and consistent with business necessity” standard?  (12/16/20, updated 5/28/21)

Yes.  If the employer offers to vaccinate its employees on a voluntary basis, meaning that employees can choose whether or not to get the COVID-19 vaccine from the employer or its agent, the employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity.  However, the employee’s decision to answer the questions must be voluntary.  (See also Questions K.16 – 17117209210224225.)  The ADA prohibits taking an adverse action against an employee, including harassing the employee, for refusing to participate in a voluntary employer-administered vaccination program.  An employer also must keep any medical information it obtains from any voluntary vaccination program confidential.

 

Thoughts/takeaways: 1) see thoughts/takeaways for K.7; 2) an employee’s decision to answer pre-vaccine questions has to be voluntary; 3) the ADA prohibits taking adverse action against an employee for refusing to participate in the voluntary employer-administered vaccination program; 4) medical information obtained from a voluntary vaccination program must be kept confidential.

K.9.  Under the ADA, is it a “disability-related inquiry” for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic?   (12/16/20, updated 5/28/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.

However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential.

 

Thoughts/takeaways: Nothing to add here.

K.10.  May an employer offer voluntary vaccinations only to certain groups of employees?  (5/28/21)

If an employer or its agent offers voluntary vaccinations to employees, the employer must comply with federal employment nondiscrimination laws.  For example, not offering voluntary vaccinations to certain employees based on national origin or another protected basis under the EEO laws would not be permissible.

 

Thoughts/takeaways: if you are going to offer voluntary vaccinations only to certain groups of employees, make sure you have documentation in place to why you are doing that. Also, make sure that any such decisions do not run into problems with persons with protected characteristics.

K.11. What should an employer do if an employee who is fully vaccinated for COVID-19 requests accommodation for an underlying disability because of a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated? (5/28/21)

Employers who receive a reasonable accommodation request from an employee should process the request in accordance with applicable ADA standards.

When an employee asks for a reasonable accommodation, whether the employee is fully vaccinated or not, the employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation.  This process typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed.

For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals.  If there is a disability-related need for accommodation, an employer must explore potential reasonable accommodations that may be provided absent undue hardship.

 

Thoughts/takeaways: 1) interactive process!!!!

Title VII and COVID-19 Vaccinations

K.12.  Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance? (12/16/20updated 5/28/21)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.  Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee.  Such requests should be processed according to the same standards that apply to other accommodation requests.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.  However, 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. See also 29 CFR 1605.

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodation for unvaccinated employees, see question and answer K.6.118210211225226, above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances.

Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.  This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.  Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.  Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.

 

Thoughts/takeaways: The first sentence in the last paragraph of this § mentions how title VII reasonable accommodation for sincerely held religious beliefs is quite a bit different than the ADA standard even if they use the same terminology.

K.13.  Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?   (12/16/20, updated 5/28/21)

Under Title VII, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy.

If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee 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 VII119211212226227.

 

Thoughts/takeaways: 1) we have discussed pregnancy before. For example, see this blog entry212213227228; 2) the Pregnant Workers Fairness Act213214228229 if it passes through Congress, and there is a good probability it will, will have something to say on this as well.

GINA And COVID-19 Vaccinations

Title II of GINA prohibits covered employers from using the genetic information of employees to make employment decisions.  It also restricts employers from requesting, requiring, purchasing, or disclosing genetic information of employees. Under Title II of GINA, genetic information includes information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member, among other things. 

 

Thoughts/takeaways: nothing to add here.

 

K.14.  Is Title II of GINA implicated if an employer requires an employee to receive a COVID-19 vaccine administered by the employer or its agent? (12/16/20, updated 5/28/21)

No.  Requiring an employee to receive a COVID-19 vaccination administered by the employer or its agent would not implicate Title II of GINA unless the pre-vaccination medical screening questions include questions about the employee’s genetic information, such as asking about the employee’s family medical history.   As of May 27, 2021, the pre-vaccination medical screening questions for the first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do not seek family medical history or any other type of genetic information.  See CDC’s Pre-vaccination Checklist120214215229230 (last visited May 27, 2021).  Therefore, an employer or its agent may ask these questions without violating Title II of GINA.

The act of administering a COVID-19 vaccine does not involve the use of the employee’s genetic information to make employment decisions or the acquisition or disclosure of genetic information and, therefore, does not implicate Title II of GINA.

 

Thoughts/takeaways: nothing to add here.

K.15.  Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a doctor, pharmacy, health agency, or another health care provider in the community? (12/16/20, updated 5/28/21)

No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.  This is the case even if the medical screening questions that must be asked before vaccination include questions about genetic information, because documentation or other confirmation of vaccination would not reveal genetic information.  Title II of GINA does not prohibit an employee’s own health care provider from asking questions about genetic information. This GINA Title II prohibition only applies to the employer or its agent.

 

Thoughts/takeaways: nothing to add here.

Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16.  Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community?  (5/28/21)

Yes.  Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.  As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.

 

Thoughts/takeaways: 1) employers are free to offer an incentive so long as the employee is getting the vaccination from a pharmacy, public health department, or other healthcare provider in the community; 2) as you can see from the very next question, different story with respect to vaccinations administered by the employer or the employer’s agent.

K.17.  Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent?  (5/28/21)

Yes, if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. As explained in K.16., however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

 

Thoughts/takeaways: 1) incentives are permissible if the employer or the employer’s agent is the one administering the vaccine so long at the incentive is not so substantial as to be coercive. What that means is anybody’s guess, which is why employers still want the EEOC to clarify this. In the meantime, keep any such incentives really small, such as small dollar gift cards, a mug, etc.

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.18.  Under GINA, may an employer offer an incentive to employees to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider, such as a doctor, pharmacy, health agency, or another health care provider in the community? (5/28/21)

Yes.  Under GINA, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.  If employers ask an employee to show documentation or other confirmation that the employee or a family member has been vaccinated, it is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member (known as family medical history under GINA), nor is it any other form of genetic information. GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information), therefore, do not apply.

 

Thoughts/takeaways: nothing to add here.

K.19.  Under GINA, may an employer offer an incentive to employees in exchange for the employee getting vaccinated by the employer or its agent? (5/28/21)

Yes.  Under GINA, as long as an employer does not acquire genetic information while administering the vaccines, employers may offer incentives to employees for getting vaccinated.  Because the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not inquire about genetic information, employers may offer incentives to their employees for getting vaccinated.  See K.14121215216230231 for more about GINA and pre-vaccination medical screening questions.

 

Thoughts/takeaways: nothing to add here.

K.20. Under GINA, may an employer offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent? (5/28/21)

No.  Under GINA’s Title II health and genetic services provision, an employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.   Providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member.  Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.  The regulations implementing Title II of GINA prohibit employers from providing incentives in exchange for genetic information.  Therefore, the employer may not offer incentives in exchange for the family member getting vaccinated.  However, employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, if they take certain steps to ensure GINA compliance.

 

Thoughts/takeaways: nothing to add here.

K.21. Under GINA, may an employer offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive? (5/28/21)

Yes.  GINA permits an employer to offer vaccinations to an employee’s family members if it takes certain steps to comply with GINA.  Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.  Employers must also ensure that all medical information obtained from top family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.  In addition, employers need to ensure that they obtain prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions about his or her medical conditions.  If these requirements are met, GINA permits the collection of genetic information.

 

Thoughts/takeaways: nothing to add here.

I have a ton of cases in my pipeline. However, sometimes breaking developments jump the pipeline. This is one of those situations. As everybody knows, the CDC came out with new guidelines regarding mask wearing, which can be found here185198205. Everybody and anybody is talking about them, and the guidelines have big implications for the world of the ADA and persons with disabilities. A couple of days before the guidelines came out, I read an article saying that the CDC should do exactly this type of thing as a way to encourage people to get vaccinated. Since the guideline came out, I have read that because there is no proof of vaccination piece associated with the guidelines, this will only make matters worse. On that score, I recommend this article by Leana Wen M.D., here186199206. Regardless, the new guidelines certainly merits discussing and trying to figure out what it means for the ADA. As usual, the blog entry is divided into categories and they are: the CDC guidelines; can employers, governmental entities, and places of public accommodations require proof of vaccination before allowing the employee to return to work, providing services to an individual, or allowing that individual to access a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. That said, this blog entry isn’t that long by my standards. So, you are probably going to want to read all of it.

 

I

The CDC Guidelines

 

  1. The CDC guidelines can be found here187200207.
  2. Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidances.
  3. Fully vaccinated people can refrain from testing following a known exposure unless they are residents or employees of a correction or detention facility or homeless shelter.
  4. Fully vaccinated people can resume domestic travel and refrain from testing before or after travel or self quarantine after travel.
  5. Fully vaccinated people can refrain from testing before leaving the United States for international travel unless required by the destination. They also can refrain from self quarantine after arriving back in the United States.
  6. Fully vaccinated people can refrain from testing following a known exposure so long as they are asymptomatic with some exception for specific settings.
  7. Fully vaccinated people can refrain from quarantine following a known exposure if asymptomatic.
  8. Fully vaccinated people can refrain from routine screening testing.
  9. Indoor and outdoor activity pose minimal risk to fully vaccinated people.
  10. Fully vaccinated people should still get tested if they are experiencing symptoms of Covid-19.
  11. Fully vaccinated people should not visit private or public setting that they have tested positive for Covid-19 and in the prior 10 days or they are experiencing Covid-19 symptoms.
  12. Masks are still required in healthcare settings and when traveling on planes, buses, trains and other forms of public transportation, including when at the airport and at stations.

 

II

Can Employers, Governmental Entities, and Places of Public Accommodations Require Proof of Vaccination before Allowing the Employee to Return to Work, Providing Services to an Individual, or Allowing That Individual to Access a Place of Public Accommodation?

 

  1. The EEOC, here, as we have discussed previously has put out a technical assistance questions and answers when it comes to dealing with the Covid-19 situation with respect to the ADA, Rehabilitation Act, and other EEO laws. Undoubtedly that publication is going to have to be updated. For our purposes, there are several applicable paragraphs in that document. K.3. asks the question is asking or requiring an employee to show proof of receipt of a Covid-19 vaccination a disability related inquiry? The EEOC says that it is not a disability related inquiry and therefore, perfectly permissible to ask for. After all, there are many reasons that may explain why an employee has not been vaccinated and those reasons may or may not be disability related. However, subsequent employer questions, such as asking why an individual did not receive the vaccination, may lead to information about a disability and would be subject to only being allowed if it was job-related and consistent with business necessity with respect to a current employee. The EEOC goes on to say that if an employer requires its employees to provide proof they have received a Covid-19 vaccination from a pharmacy or their own healthcare provider, the employer may want to warn the employee not to provide any medical information as part of that proof in order to avoid implicating the ADA.
  2. K5. discusses the question of what happens where an employer requires vaccinations when they are available and an employee indicate that she is unable to receive a Covid-19 vaccination because of a disability. Here, the employer is going to have to allow for reasonable accommodations for such an individual. Qualification standards going to whether the employee is a direct threat are certainly permissible. As we have discussed many times, such as here188201208, direct threat is a term of art and requires an individualized analysis looking at the best current and objective medical evidence. If the employer reaches the conclusion that a nonvaccinated individual will expose others to the virus at the worksite and that individual cannot be vaccinated, the employer can exclude the employee from the workplace providing there is no other way to provide a reasonable accommodation that would eliminate or reduce that risk so that the unvaccinated employee does not pose a direct threat. Be sure to engage in the interactive process before terminating any such individual.
  3. K6. talks about an employee refusing to get vaccinated because of a sincerely held religious belief. The employer has to make accommodations here too. However, keep in mind undue hardship in this section of the law does not, for now, match up with undue hardship in the ADA world. It doesn’t take much to show an undue hardship when it comes to accommodating a sincerely held religious belief.
  4. K8. talks about how requiring proof of a Covid-19 vaccination does not violate the Genetic Information Nondiscrimination Act.
  5. A nonfederal governmental entity would be perfectly within its rights under title II of the ADA to demand proof of vaccination before rendering services. Per 28 C.F.R. §35.130189202209(h), a public entity can impose legitimate safety requirements necessary for the safe operation of its services, program, or activities so long as its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  6. A place of public accommodation under 42 U.S.C. §12181190203210(7) would be perfectly within its right to demand proof of vaccination before rendering services were allowing the person to access services because, per 28 C.F.R. §36.301191204211(b), a place of public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

 

III

Thoughts/Takeaways

 

  1. As a practical matter, employers, businesses, and governmental entities have no way of knowing whether a person has received the vaccine or not. It is certainly permissible for employers, nonfederal governmental entities, and businesses to demand proof of vaccination before giving services. Politically that is a real hot potato. Even though the phones that we all carry around give us little privacy anymore, requiring proof of vaccination is a step too far for many in the United States. Some countries are taking that approach. For example, Israel puts a notification on your smart phone that you can show to businesses that you have been fully vaccinated. With that notification, you are allowed to do anything.
  2. Would proof of vaccination violate HIPAA? The answer to that is no because that law only applies to covered entities, which just about all businesses would not be. True, healthcare entities are covered HIPAA entities but the guidance excludes healthcare entities from its coverage.
  3. The guidance is a game changer for the deaf and hard of hearing because now a deaf and hard of hearing person would be perfectly within their rights to request a reasonable accommodations of a person removing his or her mask if the deaf and hard of hearing individual and the person wearing the mask have both been vaccinated. I just picked up a lunch order for my daughter and I at Jason’s Deli and came very close to making that requested reasonable accommodation myself as I could not hear a word that the employee told me when I went in to pick up my order. I decided against that approach as being too confrontational and just explained to the employee that I was deaf and wore hearing aids and could not understand anything she said. She then tried to speak a little louder, which of course didn’t help much (it is a myth that the louder the sounds are, the easier they are to understand. In fact, it is the opposite), but I was able to figure it out. I would be more aggressive if I was in a doctor’s office.
  4. Vaccines have not been approved for children under 12 years old yet. Also, there are many people who are immunocompromised. Expect these guidelines to make things very difficult for such affected individuals with respect to their choices.
  5. One of the things that people will have to get use to is that for a year now the federal government has been quite explicit in what we need to do to stay safe. Now, the wheels have come completely off with the CDC saying essentially that wearing a mask or not is an individual choice even though Covid-19 is far from conquered.
  6. Two things you are going to want to very much keep in mind going forward are the concept of direct threat, which has now changed considerably in its application, and the interactive process. Remember, a covered entity must do everything short of a direct threat to reasonably accommodate a person with a disability.
  7. What happens if you have a person with anxiety whose anxiety is severely exacerbated by people around him or her not wearing masks or the person is immunocompromised. Is it a reasonable accommodation for that individual to insist that people around that individual wear masks? The answer is probably not but don’t be surprised if people request this. Expect to see remote work request in the situation.
  8. The $64,000 question is will America get away with the new CDC guidance without requiring proof of vaccination. The jury is very much out on that question.
  9. The guidelines are good news for the deaf and hard of hearing and bad news for kids under 12 and for parents with kids under 12 who cannot avoid taking their kids with them in public. Guidelines are also bad news for anyone immunocompromised.
  10. Look for a lot of requests for remote work to continue.
  11. Don’t forget about OSHA rules if you are an employer. You still have to provide a safe workplace for your employees.
  12. Some States and some localities may have more stringent rules and those rules still apply.
  13. CDC guidelines may have ended any possibility of the CDC nationwide eviction notice being upheld now that everyone as a practical matter can go without masks.
  14. It is too politically risky to require proof of vaccination. In fact, Florida has signed into law legislation that prohibits proof of vaccination from being asked for. So, that means we are left with an honor system.
  15. Delta Airlines is requiring all new employees to have a Covid-19 vaccine.
  16. Lots and lots of training will probably be needed. Also, don’t forget about knowledgeable legal counsel.

First off, I want to welcome everyone back from the Christmas and New Year weeks. I hope everybody had a safe and happy week and continues to be safe. Today’s blog entry is something that came out in mid-December from the EEOC. I have not blogged on it yet because there were other things that I wanted to get off my blog pipeline. Also, labor and employment lawyers immediately jumped on this and have been writing about it or blogging about it or I am sure podcasting about it. So, there is plenty of information out there about what the EEOC did with respect to the new part of their guidance dealing with the ADA and Covid-19 vaccinations. Even so, since I have blogged on EEOC updates to this document previously, I thought my readers would appreciate seeing any thoughts I might have on the subject as well. So, what we have here is the EEOC guidance reproduced verbatim with any thoughts or comments I have underneath each section. I realize that the format of this first paragraph appears strange, but fixing it seems to be beyond my technological expertise. lol

 

K. Vaccinations

The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy95183191197198198).  The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.

ADA and Vaccinations

K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  As the Commission explained in guidance on disability-related inquiries and medical examinations96184192198199199, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.

Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.  If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.”  See Question K.297185193199200200.

My thoughts: With respect to paragraph one of this §, the first ¶ makes a great deal of sense. With respect to the second ¶, that gets a little complicated. In particular, the EEOC quite correctly says that if an employer administers the vaccine, it must show that such prescreening questions asked of employees are job-related and consistent with business necessity. That makes sense. However, the implication is that if the employer is not administering the vaccine anything goes. Any such implication isn’t exactly right because the ADA is a nondelegable duty as we discussed here186194200201201.

K.2. According to the CDC, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question K.5.98187195201202202 below for a discussion of direct threat.

By contrast, there are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary.  42 U.S.C. 12112(d)(4)(B)9918819620220320329 C.F.R. 1630.14(d)100189197203204204.  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential101190198204205205.

My thoughts: As I was going about writing up this blog, I had not looked at all of the questions beforehand. Rather, I looked at each question individually and then wrote my thoughts. You can see from the EEOC answer to this question that the implication of anything goes with respect to the vaccine if not administered by an employer was an implication that the EEOC did not intend. Otherwise, the EEOC responses to this question are right on the money.

 

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

My thoughts: Nothing to add here.

 

ADA and Title VII Issues Regarding Mandatory Vaccinations

K.4. Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines? (12/16/20)

Some COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure. The FDA has an obligation102191199205206206 to:

[E]nsure that recipients of the vaccine under an EUA are informed, to the extent practicable under the applicable circumstances, that FDA has authorized the emergency use of the vaccine, of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.

The FDA says that this information is typically conveyed in a patient fact sheet that is provided at the time of the vaccine administration and that it posts the fact sheets on its website.  More information about EUA vaccines is available on the FDA’s EUA page103192200206207207.

My thoughts: Nothing to add here.

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The ADA allows an employer to have a qualification standard104193201207208208 that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r)105194202208209209.  Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship106195203209210210) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude107 the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. See also Section J, EEO rights relating to pregnancy108196204210211211.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).  This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.  The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.  In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, 109www.askjan.org197205211212212.  JAN’s materials specific to COVID-19 are at 110https://askjan.org/topics/COVID-19.cfm198206212213213.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7.111199207213214214, there may be situations where an accommodation is not possible.  When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.  Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.  Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/112200208214215215.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation113201209215216216.

My thoughts:

With respect to ¶ 1, I do not have any issues with respect to what the EEOC says. I appreciate how the EEOC explains what a significant risk of substantial harm is. Their explanation is consistent with their own regulations and with Chevron v. Echazabal, which we discussed many times previously, such as here202210216217217. The one thing that I would add is that under Chevron v. Echazabal, the direct threat determination must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.

With respect to ¶ 2, the interactive process is so important. We discussed the do’s and don’ts of the interactive process here203211217218218.

With respect to ¶ 3, the interactive process concerns noted immediately above also apply here. Also, be careful not to request excessive documentation. I agree with the recommendation to contact the Job Accommodation Network204212218219219 when necessary.

With respect to ¶ 4, employers may want to have their own infectious disease specialist on retainer as the CDC guidances and recommendations can be extraordinarily confusing, if not contradictory even, when taken as a whole. Certainly, the CDC guidances and recommendations have to be strongly considered. As the EEOC says, don’t forget about OSHA either.

With respect to ¶ 5, don’t forget that the ADA at 42 U.S.C. §12203205213219220220, has prohibitions against interference as well as for retaliation.

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII114206214220221221 as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has 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.

My thoughts: This is an example of how different areas of the law may use the same terms to mean very different things. As the EEOC discusses in this §, undue hardship and reasonable accommodation have a very different meaning under title VII with respect to accommodating religious practices or beliefs than they do under the ADA. Whether the distinction of undue hardship and reasonable accommodation should continue to have such a different meaning than it does under the ADA, is a question currently pending in the courts (if memory serves, there is such a case pending in the United States Supreme Court at the moment). Very interested to see whether the considerable difference between the ADA and title VII with respect to undue hardship and reasonable accommodation continues.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude115207215221222222 the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

My thoughts: Nothing to add.

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

K.8. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? (12/16/20)

No. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, which will be discussed more below.  As noted in Question K.9. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information.  The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html116208216222223223 for a detailed discussion about how mRNA vaccines work).  Thus, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

My thoughts: Very interesting discussion and makes sense.

 

K.9. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? (12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, as discussed in Question K.2.117209217223224224, and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

GINA defines “genetic information” to mean:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

29 C.F.R. § 1635.3(c).  If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.  If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

 

My thoughts: I don’t do a lot of GINA work. I can say that carrying out these thoughts in this § might get complicated. It is certainly good preventive law. The EEOC also points to a regulatory section containing model language that can be used for telling the employee not to provide genetic information as part of proving that they were vaccinated for Covid-19. Finally, this is yet another example of how other laws can interact and overlap with the ADA.

 

If you have teams in the football playoffs (I have the bears), good luck. The college football playoff final should be a doozy.

 

Happy new year everyone!

117Airplane

peacock
On a plane? If it ever was…Not anymore.
On a plane? Yes, if I trained him for use outside the house.

120

Miniature horse
yes to non-federal governmental entities; yes to places of public accommodations; but not on planes.

As you know, I typically do not blog more than once a week. However, I have a good reason for doing so this week. Next week, I am going to be in Austin (Round Rock actually) attending and speaking at the Accessibility Professionals Association conference. Immediately following that or perhaps the week after, I very well may be in Houston testifying as an expert witness. So, I have a little bit of time this morning. Also, on Wednesday, the Department of Transportation came out with proposed regulations on service animals, here121. Since I have written about the issue of animals on planes numerous times before (such as here122, here123, and here124), I feel compelled to blog on it. As usual, blog entry is divided into categories and they are: 1) why DOT felt compelled to issue regulations; 2) just what are the proposed regulations and what are they seeking further comments on; and 3) thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Why The Regulations?

 

  1. Service animal related complaints are increasingly a significant portion of disability related complaints that the department’s aviation consumer protection division and airlines receive.
  2. Concerns have been raised by airlines, airports, and disability advocates about inconsistency between the definition of a service animal when it comes to U.S. carriers and foreign air carrier services.
  3. The current rules are inconsistent with DOJ’s ADA rules. That could lead to some strange situations. For example, a restaurant on an airport concourse justifiably refusing an animal but that animal having the right to fly on the plane.
  4. The current rules are inconsistent with respect to the kinds of animals that can be allowed on the plane when compared to DOJ rules for example. Right now, a variety of animals are permitted on the plane and that results in airlines expending considerable amount of time when it comes to unusual or untrained animals.
  5. Passengers wishing to travel with pets may be falsely claiming that their pets are service animals in order to avoid paying the fee charged by most airlines. Airlines have reported increases in the number of service animals on aircraft and have expressed concern that the increase is due in part to passengers falsely claiming that their pets are emotional support animals.
  6. According to airlines, passengers are increasingly bringing untrained service animals on board aircraft thereby putting the safety of crew members, other passengers, and other service animals at risk.
  7. Some believe that emotional support animals pose a greater safety risk because they have not been trained to mitigate a disability and have not received adequate behavioral training.
  8. Current regulations are confusing. For example, service animals for those with physical disability get different treatment than service animal for those with psychiatric disabilities.
  9. The Federal Aviation Administration Reauthorization Act of 2018, which we discussed here125, mandated that the Department of Transportation conduct rulemaking proceeding to sort out this service animal/emotional support animal confusion.
  10. An Access Advisory committee was formed by DOT to consider a whole bunch of issues but could not reach agreement.
  11. A previous notice of proposed rulemaking was published and many comments were received, and so, the process has been moving along.
  12. The current set up creates a market inefficiency, which requires carriers to forgo a potential revenue source.

 

II

 

The Proposed Regulations and What Further Comments Are Needed

 

  1. The proposed regulations will define a service animal as a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. This definition pretty much tracks the DOJ final implementing regulations under title II and title III of the ADA (which we have discussed many times, such as here126), found at 28 C.F.R. §§104127, 36.104128. A passenger can have up to two service animals. While a passenger could travel with two service animals, that does not give the passenger additional space for those service animals. That is, the airline must allow that individual to use all of his or her allotted space for both service animals without encroaching into the space of another passenger.
  2. Emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals because they are not trained to do work or perform a task for the benefit of an individual with a disability. Aligning this definition with DOJ’s ADA regulations decreases confusion for individuals with disabilities, airline personnel, and airports. That said, DOT is seeking comments on whether emotional support animals for individuals with disabilities should be regulated separately and distinctly from service animals. DOT is seeking comment on how to deal with the situation where an emotional support animal user with a mental health disability has trained their dog to do work or perform a task to assist them with their disability thereby transforming the animal into a psychiatric service animal. DOT is also seeking comment on whether emotional support animals are more likely to not behave (I can’t imagine that isn’t the case because of their lack of training, but I don’t know that for sure). DOT is also seeking comment on how limiting emotional support animal to dogs and cats might impact individuals with disabilities who rely on other species of animals to accommodate their disability. DOT’s current understanding is that dogs currently represent 90% of service animals transported on aircraft with cats coming in second. So, DOT is looking for information on how people who rely on emotional support animals would be impacted by the rule.
  3. A passenger would be limited to one emotional support animal.
  4. A service animal is limited to a dog for a couple of different reasons. First, dogs are the most common animal species used by individual to mitigate disabilities both on and off aircraft. Second, dogs also have the temperament and ability to do work and perform tasks while behaving appropriately in a public setting and while being surrounded by a large group of people.
  5. Capuchin monkeys and miniature horses are not service animals. Monkeys are out because they may present a safety risk to other passengers as they have the potential to transmit diseases and exhibit unpredictable aggressive behavior. Miniature horses are out due to their size (I did recently read about a miniature horse flying with a person with a disability. If the regulations wind up as they are now, that person will not be able to do so in the future). The department is seeking comment with respect to limiting service animals to dogs.
  6. Dog breed restrictions are out. DOT said as much in their final statement of enforcement priorities regarding service animals. DOT’s policy has been to require airlines to conduct individualized assessment that a particular service animal based upon the animal’s behavior or health rather than applying generalized assumptions about how a breed or type of dog is expected to behave. Under this policy, DOT allows airlines to refuse transportation to dogs exhibiting aggressive behavior and posing a direct threat to the health or safety of others regardless of breed. Also, DOJ rejects outright bans on service animals because of their breed in their final implementing regulations. For example, DOJ has advised municipalities that prohibiting specific breeds of dogs is out when it come to a service animal unless the dog poses a direct threat to the health or safety of others, which is a determination that has to be made on a case-by-case basis.
  7. DOT recognizes that the airplane is a unique environment. Therefore, comment is sought on whether breed restrictions are justified in the airplane context. Also, comment is sought on whether allowing airlines to conduct an individualized assessment of a service animal’s behavior in order to determine whether the service animal poses a direct threat is an adequate measure to ensure aggressive animals are not transported on aircraft.
  8. The proposed rule treats psychiatric service animals the same as other service animal trained to do work or perform tasks. The change not only harmonizes DOT’s regulation with DOJ’s ADA service animal definition, but also eliminates a weak rationale for having a different regulatory requirement for users of psychiatric service animals. That is, DOT believes that justification for treating service animal users with mental or emotional disabilities differently from service animal users with other disabilities is currently lacking.
  9. A service animal will have to fit within the passenger’s foot space on the aircraft or can be placed on the passenger’s lap. While it is absolutely true that many large service animals accompany individuals with disabilities on aircraft, particularly for those individuals with mobility impairments, those animals are often trained to fit in the small spaces. Where an animal is too large to fit in the passenger’s foot space or placed on the passenger’s lap, DOT proposes to require airlines to seat the passenger traveling with the service animal next to an empty seat within the same class of service if such a seat is available. If no empty seats are available to allow a passenger to travel with the service animal in the cabin or the passenger’s scheduled flight, DOT proposes to require airlines to provide passengers the option to transport the animal in the cargo hold for free or to transport the passenger on a later flight with more room if available. DOT is seeking comment on this.
  10. Service animals will have to be harnessed, leashed, or tethered unless the device interferes with the service animal’s work or the passenger’s disability prevents use of those devices. In that case, the carrier has to permit the passenger to use voice, signal, or other effective means to maintain control of the service animal. Such a requirement is essentially the same as to what is found in DOJ’s final implementing regulations at 28 C.F.R. §§136129(d), 36.302130(c)(4).
  11. Under the proposed rule, an airline can decide that an animal is not a service animal if it is not under the control of its handler. That is a bit different from DOJ’s approach, which says the service animal may still be a service animal that can be excluded if it is out of control or the animal’s handler does not take effective action to control it.
  12. DOT’s air transportation service animal behavior and attestation form, which airlines may require passengers with disabilities seeking to travel with the service animal on aircraft, includes a statement that the passenger understands the animal must be harnessed, leashed, or tethered unless the passenger is unable because of a disability to do so.
  13. A handler is defined as a qualified individual with a disability who receives assistance from a service animal doing work or performing tasks directly related to the individual’s disability, or a safety assistant, as described in 14 C.F.R. §382.29131(b), who accompanies an individual with the disability traveling with a service animal. The service animal handler has the responsibility for keeping the service animal under control at all times and for caring and supervising the service animal, including toileting and feeding. A service animal trainer traveling with a trained service animal not serving as a safety assistant for passenger with a disability, and other passengers traveling with an individual with a disability on aircraft, will not be considered service animal handlers under the proposed rule. The department seeks comment on its decision to define service animal handler in this way. It also seeks comment on what impact, if any, it’s exclusion of third parties as service animal handlers might have on individuals with disability traveling on aircraft with the service animal. The DOT is also seeking comment on the proposed regulations regarding the animal must be under the control of the handler either via restraint device or by voice. It also seeks comment on whether in cabin pet carrier consistent with FAA regulation should be included in the rule as an optional service animal restraint device if the final rule recognizes emotional support animals.
  14. With respect to documentation that the animal is a service animal, the proposed rule does the following: 1) require individuals traveling with a service animal to provide to the airlines standardized documentation of the service animal’s behavior, training, and health; 2) if the service animal will be on a flight segment longer than eight hours, DOT proposes to allow a standard form attesting that the animal would not need to relieve itself or can relieve itself in a way that does not create a health or sanitation risk; 3) the forms are the only documentation that an airline will be able to use and require of a passenger traveling with a service animal. The airline does not have to ask a passenger with traveling with the service animal for any documentation, but if they do, the airlines have to use the forms established by DOT. DOT is seeking comment on whether airline should be allowed to create their own forms or if uniformity is more helpful.
  15. They DOT air transportation service animal behavior and training and attestation form is completed by the passenger and provides assurance that the service animal traveling on the aircraft has been individually trained to do work or perform tasks for the benefit of the passenger with a disability. It also provides assurance that the animal has been trained to behave properly in public, and that the user is aware that the service animal must be under his or her control at all times. DOT believes that the form serves as a deterrent for individuals who might otherwise seek to claim falsely that their pets are service animals as an individual is less likely to falsify a federal form. The DOT is seeking comment on ways to reduce any burden on individuals with disabilities traveling with service animals and is seeking comment on a variety of concerns, including: 1) what ways are out there to reduce the burden that the DOT’s behavior and training form would have on passengers with disabilities; 2) should airlines be allowed to require the form each time a service animal user travels, even for round-trip flights; 3) what medium should airlines use (hardcopy, electronic, email), to provide and collect the form passengers with disability; 4) are there privacy concerns airlines should consider; 5) do the questions in the form help airlines determine whether an animal has been adequately and properly trained; 6) does the form adequately educate passengers on how a service animal is expected behave, the consequences of misbehaving, and the seriousness of falsifying the DOT form; 7) should the airline be allowed to require only emotional support animal user to complete such a form if the department were to continue to require airlines to transport emotional support animals; and 8) does the general content and layout of the form makes sense.
  16. The actual service animal behavior and training attestation form contains the following certifications: 1) the animal has been trained to do work or perform tasks to assist the individual with his or her disability and has been trained to behave well in a public setting without aggression towards humans or other animals; 2) the animal will be under the control of the handler either via restraint device or by voice commands; 3) the airline has the right to treat the animal as a pet if the animal engages in disruptive behavior that show that it had not been successfully trained to behave properly in a public setting; 4) the airline has the right to charge for the cost to repair any damage caused by the service animal so long as the airline charges passengers without disability for the same kind of damage; and 5) it is fraud to knowingly make a false statement to secure disability accommodations provided under DOT regulations.
  17. DOT also proposes to allow airlines to require passengers to submit to the airline a DOT service animal health form completed by the passenger’s veterinarian. The form, which is to be completed by the veterinarian, describes the animal, indicates whether the service animal’s rabies vaccination are up-to-date and whether the animal has any known diseases or infestation, and states whether the veterinarian is aware of any aggressive behavior by the animal. The form will be valid for one year from the date of issuance. DOT seeks comment on whether one year is too long or too short for the vaccination form to be valid and the reasons for any such belief. The form is modeled after a number of State certificate of veterinary inspection forms and the United States Department of Agriculture APHIS 7001 form. DOT seeks comment on a proposal to allow airline to require that passengers provide the vaccination form as evidence that the service animal has received a rabies vaccine and that the animal is not exhibited aggressive behavior known to the veterinarian. It also seeks comment on whether the airline can refuse transportation to a service animal based upon information contained in that form, such as where the veterinarian discloses on the form that the animal has a history of aggressive behavior or has caused serious injury to a person or animal). DOT also seeks comment on whether the form would be effective in ensuring that the traveling public would not contract rabies from a service animal should they be bitten. DOT also seeks comment on the burden such a form imposes upon passengers traveling with disabilities. DOT also seeks comment on whether the animal health form should be limited to emotional support animal user in the event DOT decided to continue to require airlines to transport emotional support animals.
  18. The current rule allows airlines to insist on documentation that the animal will not need to relieve itself or can relieve itself in a way not creating a health or sanitation issue when going on a flight of longer than eight hours. The proposed rule would only allow the airlines to request a DOT service animal relief attestation form and nothing else. That particular form just certifies that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight. It also has a box saying that the handler is responsible for the cost to repair any damage caused by the animal so long as the airline charges passengers without disabilities for similar kinds of damage.
  19. The proposed rule would prohibit airlines from requiring passengers to provide the DOT health, behavior and training and relief forms prior to the passenger’s date of travel and is seeking comment on that. The DOT is also seeking comment on whether using standardized DOT forms is the best way for airlines to collect data from passengers traveling with service dogs. Since aircraft are unique, DOT believes that a proposal allowing airline to require all service dog users to provide the DOT standardized form to assist airlines in determining whether a service dog poses a direct threat to the health or safety of others makes sense.
  20. The proposed rule, as mentioned above, prohibits airlines from requiring individual traveling with the service animal to provide the DOT issued forms in advance of the passenger’s flight because advance notice may present significant challenges to passengers with disabilities wishing to make last-minute travel plans that may be necessary for worker family emergencies. Airlines can require users of the service animal to check in at the airport one hour before the check-in time at the airport for the general public to process service animal documentation so long at the airline similarly requires advanced check-in for passengers traveling with pets in the cabin.
  21. DOT proposed rule requires airline to make an employee training to handle disability related matters available in person at the airline’s designated airport location to process service animal documentation promptly.
  22. The DOT seeks comments on a proposal to require airlines to try to accommodate passengers failing to meet the one hour check-in requirement so long at the airline can do so by making reasonable efforts without delaying the flight.
  23. The proposed rule would make the species requirement the same for both U.S. carriers and foreign carriers.
  24. Proposed §382.74 does something different than what the current regulations do. That is, it matches up with the two inquiry paradigm of the DOJ’s title II and title III regulations. That is, it says that airline can only make two inquiries to determine whether an animal qualifies as a service animal. The two questions are: 1) is the animal required to accompanying the passenger because of a disability; and 2) what work or tasks has the animal has been trained to perform. You cannot ask about the nature or extent of a person’s disability or ask that the service animal demonstrate its work or tasks.
  25. Proposed rule §382.75(e) requires that an airline’s website must make the DOT forms mandated by the proposed rule available to passengers in an accessible format.
  26. Proposed rule §382.79(c) that with respect to making a determination to deny transport to a service animal on the basis that the animal has misbehaved and/or has caused a significant disruption in the cabin must be based upon an individualized assessment based upon a reasonable judgment relying on the best available and objective evidence to ascertain the probability that the misbehavior and/or disruption will continue to occur. Further, whether reasonable modifications in policies, practices, or procedure will mitigate the misbehavior and/or the disruption must also be considered.
  27. Proposed rule §382.79(e) says if an airline is going to deny transport to the service animal, the airline must issue a written statement for the reason for the refusal. That statement has to include the specific basis for the airline’s opinion that the refusal meet the standards for denying transport. Further, that written statement must be provided to the individual with the disability accompanied by the service animal either at the airport or within 10 calendar days of the refusal of transportation.
  28. Proposed §382.80 prohibits carriers from imposing additional restrictions on the transport of service animals beyond what is specified in the proposed regulations.

 

III

 

Thoughts/Takeaways

 

  1. Current regulations implementing the Air Carrier Access Act are a mess. It’s amazing the system works at all. So, the proposed regulation brings needed clarity to the situation.
  2. I do not have a dog in the fight. That is, I am not currently representing or consulting with anybody or any organization with respect to these proposed rules.
  3. The proposed regulation gets rid of the arbitrary and unsupportable, even by DOT’s own admission, distinction between service animal for physical disabilities v. psychiatric disabilities.
  4. The proposed regulations eliminate the issue currently seen in the Tampa airport where Tampa airport said that emotional support animals unless they were crated or on a leash, etc., were not allowed in the airport. Such a decision was consistent with title II of the ADA’s final implementing regulations. Now that service animal under the DOT regulations matches for all practical purposes the regulations under title II and title III of the ADA, this would no longer be an issue.
  5. DOT is asking for lots of comments on many issues. The proposed reg was published on 2/5. So, that means comments due in by April 5 or possibly 6 (you have to check to see if a Sunday for a due date affects anything). So, these regulations could very well change.
  6. Emotional support animals are out. How many people will be truly affected by this decision is an open question. I would certainly like to know that, and DOT would like to know that too as they are seeking comment on that question.
  7. While DOT is seeking comments on breed restrictions, I don’t think you will see DOT back down on that. That means Delta Airlines will have to end its restriction on pitbulls.
  8. Direct threat determination very closely resembles Chevron v. Echazabal, which we discussed here132. It brings needed clarity to the area to what was previously very confusing.
  9. If an animal is not under the control of the handler, then it isn’t a service dog. This is a theoretical distinction but not necessarily a practical distinction from the ADA’s title II and title III DOJ regulations.
  10. It isn’t clear to me how a person training an animal to be a service animal gets treated under the proposed rule. Airline travel is part of the training for service dogs.
  11. The documentation approach seems balanced and simplifies things greatly. It will be interesting to see what happens during the commenting period.
  12. Is a veterinarian really qualified to attest to a dog’s aggressive tendencies? Why would a person with a disability even submit a form from the veterinarian saying that the dog has been aggressive? What if the dog got aggressive because it was doing his or her job and a human element acted stupid?
  13. Airlines can’t require the DOT standardized forms in advance.
  14. DOT uses the two inquiries term found in the DOJ regulations but not in the DOJ’s frequently asked questions document. This leads to the real question of whether narrowly focused follow-up questions are in order if insufficient information is given to the two questions. Arguably, the answer is yes so long as the follow-up questions fall within those two inquiries. Also, interesting to note that nothing in this section of the proposed regulation, unlike the DOJ regulations, says that the work or task performed by the animal must be related to the handler’s disability, though other sections of the proposed regulation do make that clear.
  15. The regulations are exclusive. That is, airline can not add additional restrictions beyond the regulation. That means, for example, Delta’s ban on pit bulls, which I believe is still in place, will have to end.
  16. DOJ says it is seeking comments on how to deal with a person with a mental health issue who has trained his or her emotional support animal to do work or perform a task to assist them with the disability. I find this whole thing strange for two reasons. First, the emotional support animal at that point is a service animal and not an emotional support animal because it is engaged in recognition and response and has been trained to do so. Second, anybody can train a dog to be a service animal. So, I am not sure why commenting on this question is even needed. So, what DOT does in response to comments on this question will be interesting to see.
  17. No doubt training will be needed. Be sure to use a knowledgeable trainer. That trainer needs to know both the applicable Air Carrier Access Act regulations as well as the ADA regulations pertaining to service dogs. That person also needs to recognize the similarities and differences between the two.
  18. What will happen to people who falsify the forms? Is the system geared up for that? Does putting such people into the criminal justice system even makes sense?
  19. This blog has been a deep dive, but it is not legal advice. There is no substitution for knowledgeable Air Carrier Access Act counsel.

Here, in Decatur, Georgia, and for that matter in the Atlanta metropolitan area generally, kids start school very early and end very early. In Decatur’s case, they start school the first Monday in August and end right before Memorial Day. So, next week my daughter starts summer vacation. She is in for a pretty busy summer, lots of fun camps and her bat mitzvah. So, I thought I would get ahead of next week, which she has off, and get a blog entry up to cover next week.

Today’s blog entry talks about how much notice from an employee is necessary for triggering the interactive process. I have previously talked about it in some way in this blog entry. As mentioned in that blog entry, preventive law is an excellent way to go about it because getting a handle on the specific notice required is very difficult to do. As usual, the blog entry is divided into categories: Valdivia v. Township High School District 214; Ruggiero v. Mount Nittany Medical Center; and takeaways. The reader is free to focus on any or all of the sections.

 

I

Valdivia v. Township High School District 214

In this case, the plaintiff was subject to a severe pattern of harassment that resulted in her behavior changing and she was forced to resign. She brought suit under title VII as well as the FMLA claiming that her employer should have known she was dealing with a serious health condition because of her behavior changes, and therefore, the defendant interfered with her FMLA rights by failing to provide her with the notice that she had a right to take job protected leave under the FMLA. In agreeing with the plaintiff, Magistrate Judge Sidney Schenkier of the Northern District of Illinois, Eastern Division, held the following:

  1. Where an employee is unaware she suffers from a serious medical condition or is unable to communicate her illness to her employer, the notice requirement may be met indirectly. So, clear abnormalities in the employee’s behavior can constitute constructive notice of a serious health condition.
  2. Observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may provide an employer with adequate notice of a serious medical condition and eliminate the need for an express request for medical leave.
  3. Plaintiff alleged that in July 2016, one month after transferring due to harassment at another school, she became extremely distraught and began crying regularly and uncontrollably at work. She cried uncontrollably multiple times to her supervisor who had known her since 2012. She also told her supervisor that she was overwhelmed, afraid, not sleeping or eating, and unsure if she could continue to work. Further, she also cried uncontrollably to two other employees at the high school telling them she was unsure whether she could continue to work for the defendant. The response of her supervisor was to tell her to decide whether or not to resign. After she resigned, she was hospitalized for four days and diagnosed with depression, anxiety disorder, panic disorder, and insomnia. Accordingly, plaintiff plausibly alleged the defendant was on notice that she may have been suffering from a serious health condition at the time she was asked to decide whether to resign, particularly since the supervisor had known the plaintiff for several years and would/should have realized that her behavior was a dramatic departure from her normal behavior. Regardless of the prior relationship, the behavior of the plaintiff was unusual for any employee.
  4. Relying on a Seventh Circuit case involving depression, The fact that plaintiff did not know of her medical condition at the time of her resignation is not fatal to her FMLA claim. A plaintiff can be excused from giving direct notice where her medical condition prevents her from communicating the nature of her illness.

II

Ruggiero v. Mount Nittany Medical Center

In this case, the plaintiff suffered from both anxiety and eosinophilic esophagitis. On April 22, 2015, the defendant sent a memo to all clinical employees stating that it was instituting a new requirement that all clinical employees had to obtain a tetanus, diphtheria, and pertussis vaccine. When plaintiff tried to remove herself from that requirement through doctors notes and communication with her employer, the employer responded by asking her whether her condition was such that she had one of the conditions making the vaccine medically contraindicated. When that information was not forthcoming, plaintiff was terminated.  In granting the defendant’s motion to dismiss for failure to state a claim, Judge Brann of the Middle District of Pennsylvania reasoned as follows:

 

  1. Just because a plaintiff conveys a healthcare professional’s initial findings of a medical impairment, that does not support an inference that the defendant was aware of a disability.
  2. Simply informing the employer of a particular condition, is not the same thing as providing to the employer knowledge that the employee is substantially limited in some major life activity.
  3. Vague and conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA.
  4. It is up to the employee to show that the employer knew of the employee’s substantial physical or mental limitations resulting from the diagnosed impairments.
  5. For purposes of proving ADA discrimination, a distinction must be made between the employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability. This distinction is critical because the ADA requires employers to reasonably accommodate limitations, not disabilities.
  6. The determination of whether an individual has a disability is not necessarily based upon the name or diagnosis of the impairment the person has, but rather on the effect that impairment has on the life of the individual.
  7. The hospital had good reasons, based upon a large body of medical evidence, for requiring the vaccination of all healthcare personnel.

After deciding that the employer did not have the requisite notice, Judge Brann went on to talk about how the employer still wins even if he were to make the assumption that the employer was on notice as to both her disability and the need for accommodations because the employer acted in good faith in attempting to accommodate plaintiff despite a lack of knowledge of her mental and physical limitations. In reaching that conclusion, he reasoned as follows:

  1. Although the ADA does not explicitly refer to an interactive process, the Third Circuit has endorsed that concept as a means of furthering the ADA’s purposes because the interactive process allows the employee to consider accommodations he or she may not otherwise be aware of while simultaneously allowing the employer to better understand the potential range of jobs the employee can do.
  2. Making out a prima facie case for a breakdown in the interactive process under the ADA involves showing: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodation; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.
  3. In a footnote, the court noted that a claim brought under failure to accommodate does not require any evidence or inference of intentional discrimination. Therefore, McDonnell-Douglas (see this blog entry), is not used to evaluate failure to accommodate claims.
  4. All that is required when it comes to the interactive process is that the employers make a good-faith effort to seek accommodations.
  5. The facts show that the employer was willing to exempt the plaintiff from the vaccination requirement if she had provided evidence her alleged disability precluded her from obtaining the vaccine due to the medical contraindications indicated by the manufacturer. Had she furnished such evidence, the employer would have made an exception to the vaccination requirement.
  6. The law does not mandate an employer or labor organization accommodate what amounts to a purely personal preference.
  7. In a footnote, the court noted that the letter from the plaintiff’s doctor explained the plaintiff was worried about the side effects of the vaccine. That letter did not say that either her anxiety or her eosinophilic esophagitis were the medically-based reasons she could not take the vaccine. So, the court said plaintiff failed to appreciate the nature of the restriction required to qualify as a person with a disability under the ADA. After all, most people in the general population would agree that they feel the same discomfort as plaintiff when it comes to vaccines.
  8. The interactive process does not demand that any particular accommodation be made by the employer.
  9. The ADA was not intended to provide a way for a court to establish conditions of a person’s employment.
  10. Congress intended that persons with disabilities have the same opportunities available to them as are available to persons without disabilities.
  11. If it turns out that there is no existing job that the employee can perform with or without reasonable accommodations, then under the ADA, the company cannot be held liable.

III

Takeaways:

  1. Courts for years have struggled with just what is necessary for an employee to do in order to give the employer notice of his or her disability and trigger the interactive process. The decisions are difficult to get a handle on and are a bit all over the place.
  2. Preventive law is critical. An employer is better off erring on the side that they have been put on notice rather than waiting for something more explicit. After all, magic words, as we have discussed here and here, are not necessary to trigger the interactive process.
  3. Valdivia has not been the rule for courts when dealing with whether a person with a disability has presented sufficient information to trigger the interactive process. I also don’t think Valdivia will be persuasive when it comes to future ADA cases because it goes against the weight of previous ADA authority and because Valdivia involves the FMLA and not the ADA. Also, despite the reasoning of the court, plenty of facts exist so that an employer could reasonably be said to have been aware of a serious health condition/disability.
  4. Interactive process cases break down into different ways. There are Circuits where the interactive process is a separate cause of action, but there are also Circuits where the interactive process is not a separate cause of action. If you are faced with such a case, be sure to check the approach your Circuit uses.
  5. Where a job contains a prerequisite, such as a vaccination requirement, it is always helpful on the employer side if you have bona fide reasons backing up the need for that requirement.
  6. Judge Brann raised a really important point when he said that the ADA requires employees to reasonably accommodate limitations and not disabilities. I must confess I hadn’t thought of it that way before, but it makes a great deal of sense. After all, the definition of a disability is a physical or mental impairment that substantially limits one or more of life’s major activities, and both parts have to be true for a disability to exist under the ADA.
  7. When it comes to interactive process cases, remember it is the party that breaks down the interactive process that bears the consequences.
  8. Personal preferences are not obligations imposed by the ADA.
  9. While the amendment to the ADA have made it much easier to be considered a person with a disability, even those amendments go beyond the realm of simple discomfort/simple anxiety associated with various activities.
  10. An employer must be on notice for both the disability and the substantial limitation on a major life activity before the obligation to start the interactive process is triggered.

Back in January 2015, you will find this blog entry talking about the survivability of ADA claims and Fair Housing Act (FHA) claims. That case was appealed, and the Third Circuit issued a precedential (published), decision on March 31, 2017. So, here goes. As is usual, the blog is divided into categories and they are: facts (there was very little discussion of the facts in the original blog entry); court’s reasoning with respect to the survival cause of action; court’s reasoning with respect to failure to accommodate; court’s reasoning with respect to interference; and takeaways. Of course, the reader is free to read any or all of the sections.

I

Facts

Two residents of the condominium, Walters and Kromenhoek, suffered from disabilities and each had emotional support animal prescribed for them. Both of them obtained a dog thereby violating the no dogs rule of the condominium Association. That rule prohibited dogs and farm animals subject to a fine specified by the Board of Directors. The rule had no exceptions and the Association had no policy regarding assistance animals, including emotional support animals. The Board of Directors of the Association had the authority to enforce those rules and regulations. Both plaintiffs attempted to request accommodations for an emotional support animal by filing paperwork with the Association’s office manager, which included a doctor’s letter prescribing the emotional support animal and a dog certification. The certification stated that the dog was prescribed and deemed necessary to assist each of the individuals, and that property managers and landlords were required to make reasonable accommodations under the FHA. The Association took no action at that time.

Having dogs in the condominium got some of the residents very upset. One of the residents, a Talkington, wrote about it on his blog about the community. In October 2011, he wrote on the blog that Walters had a dog and claimed to have papers to allow her to have it. He also wrote that he had asked the office manager whether she had Walters paperwork in their files and whether monetary fines had been assessed but had not received an answer. In response to that blog post, another resident, a Felice, posted the first of many inflammatory comments on Talkington’s blog. He wrote that dog owners might be happier in another community rather than be ostracized at this condominium, which would be another fine and progressive fines after that. Walters responded saying that she was required to defend herself not as a violator of any laws but as a person with the disability. She also said that she was mortified that her personal business had been laid out over the Internet without her permission or forewarning. That drew a response from Felice saying that someone who needed an emotional support dog might go off his or her gourd without the dog at his or her side or have a violent reaction. Also, he thought that he might or might not need protection and that the law allowing her to have dogs was a bad law. He also said that Walters has a pet and should be fined. What followed was a flurry of emails among the Board and the plaintiffs.

The board did not grant an accommodation to either of the requesting individuals. Instead, the board voted to fine both individuals for violating the no dogs rule. The fine was $50 per day and put in abeyance pending legal advice. Even after that, both Felice and Talkington continued to lambaste both plaintiffs. In November 2011, Felice wrote that if you couldn’t remove the guilty, you could certainly ostracize them. In December 2011, Talkington wrote a blog post naming and labeling the plaintiffs as known violators and their emotional support animals as illegal neighborhood puppy dogs. Talkington also reported that a neighbor heard one dog barking and Talkington added sarcastically that trained service dogs are specifically trained to not bark unless the owner is in imminent danger. Further, maybe one of the pupps pooped in the owner’s unit and was warning the owner to watch out. Talkington continued saying that such certifications are issued without verifying either the animal’s credentials or the purported disability. He later said that the ridiculous puppy dog diplomas from the puppy mills are out of line and that diploma mills accept stress as a disability without any doctor confirmation. This was echoed by Felice in belligerent terms. Later that winter, Talkington wrote on his blog that the condominium association should go on the offensive and lawyer up to pursue an action against owners who are noncompliant with the policy on service dogs. Felice then described both of the plaintiffs as miscreants, ungracious, selfish, spoiled, brats willing to flaunt the illegal dogs in everyone’s face. Talkington piled on by saying that the two individuals were playground bullies attempting to hang onto their puppies and wrote that it was time for the Association to go on the offensive and file suit in a court of law to force the issue.

All this finally came to a close once a new president of the board came into place. In March 2012, both plaintiffs submitted to the new president of the board a formal request for accommodation and the board granted the request and waived the accrued fines. Even so, Walters and Kromenhoek filed suit.

Before moving further, a few points are worth noting. First, the original suit at the District Court level included ADA claims against the Board, which the District Court referenced in its decision. However, between that decision and the Circuit Court decision, plaintiffs conceded the ADA claims (the court doesn’t say why, but perhaps it is due to the fact that the FHA and the ADA do not deal with assistance animals in the same way; the FHA is far broader). Second, while the case was pending in the District Court, Walters committed suicide. So, as mentioned in the original blog entry, the District Court held that Walters claim did not survive and denied Kromenhoek’s claim on the merits. Third, the original president of the board, Harcourt, and Felice also died during the pendency of the litigation. Finally, the lawsuits had reasonable accommodation claims and interference claims under the FHA as their cause of action.

II

Court’s Reasoning Regarding Survival of Cause of Action

The appellate court reversed the District Court’s grant of summary judgment against Walters executrix. It also, on the merits of the summary judgment motions, reversed in part and vacated in part. In doing that, it reasoned as follows:

  1. The FHA is silent as to survival of claims.
  2. 42 U.S.C. §1988(a) provides that where certain federal laws are deficient, the federal courts may apply common-law as modified and changed by the constitutions and statutes of the State provided that the state law is consistent with the Constitution and laws of the United States.
  3. 42 U.S.C. §1988(a) on its face only applies to certain statutes bound within three titles of the revised statutes, namely titles 13, 24, and 70. The FHA was enacted almost a century after those statutes and was never codified in title 13, 24, or 70. Therefore, 42 U.S.C. §1988(a) by its plain meaning does not apply to the FHA.
  4. Legislative history of that provision shows that §1988(a) has always applied to designated statutes only and not to any statute that could be labeled a civil rights law.
  5. 1988(a) was intended to do nothing more than explain the source of law applicable in actions brought to enforce the substantive provisions of that act, which later became 42 U.S.C. §§1981-83.
  6. Since 1874, Congress had never amended, save for editorial changes, the phrase, “this title [the judiciary], and of title ‘civil rights,’ and of title’crimes.’” Therefore, §1988(a) only applies to those laws codified within those three titles of the revised statutes of 1874, which does not include the FHA.
  7. The Supreme Court has in general rejected linkage between the reconstruction era civil rights acts and other federal statutes by emphasizing the independence of the remedial scheme established by the reconstruction era acts.
  8. Since the FHA is a federal statute, whether a claim survives the death of a party is a question of federal law.
  9. Since Congress has not provided statutory guidance, resolution of the survival issue depends upon federal common law.
  10. One area where courts consistently apply a uniform rule federal common law is when it comes to survival of federal claims, including such laws as: Vaccine Act; ERISA; Forfeiture Claims; Freedom Of Information Act; False Claims Act; ADEA; Labor-Management Reporting and Disclosure Act Of 1959; and Truth In Lending Act.
  11. When it comes to FHA claims surviving the death of a party, a uniform federal common law rule is appropriate to fulfill the overall purposes of the statute as the federal interests at stake to provide fair housing throughout the United States warrants displacement of state law on the narrow issue of survival of claims.
  12. Since federal courts do not have the creative power vested in Congress, the court elected to follow the weight of authority saying that under federal common law rule, remedial claims survive but not penal ones.
  13. The FHA is certainly remedial and was intended by Congress to have broad remedial intent.

III

Court’s Reasoning with Respect to Failure to Accommodate

  1. Discrimination under the FHA includes, per 42 U.S.C. §3604(f)(2), a refusal to make reasonable accommodations and rules, policies, practices, or services, when those accommodations are necessary to afford an individual equal opportunity to use and enjoy a dwelling.
  2. To determine whether an accommodation is reasonable, the court looks to whether the requested accommodation was reasonable and necessary to afford a person with a disability (the FHA uses the term handicapped), an equal opportunity to use and enjoy housing.
  3. A reasonable accommodation under the FHA includes the use of an emotional support animal in a person’s own home despite the existence of a rule, policy or law prohibiting such an animal.
  4. A refusal to provide a reasonable accommodation under the FHA may be either actual or constructive.
  5. An undue delay in granting a reasonable accommodation may amount to a refusal.
  6. A refusal occurs when the resident with a disability is first denied a reasonable accommodation regardless of the remedies granted in subsequent proceedings. For a housing provider’s action to be deemed a refusal under the FHA, that provider must first have a prior opportunity to accommodate. That is, the provider has to have an idea of the accommodation sought by the plaintiff prior to the provider incurring liability for refusing it.
  7. Material issues of fact exist with respect to whether Cowpet’s action constituted a refusal. In particular, it isn’t clear from a series of emails whether the plaintiffs were asking the Board to not review their paperwork or whether they were just asking the board to respect the privacy of their medical information. If it was just a matter of respecting the privacy of information, then the Board would have had an opportunity to accommodate.
  8. Material issues of fact also exists with respect to whether the original Cowpet Board President, Harcourt, actually reviewed the paperwork on file in the Association’s office as the office manager and the Board treasurer had opposite memories of what happened.

III

Court’s Reasoning with Respect to Interference

  1. The FHA, 42 U.S.C. §3617, makes it unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercise or enjoyed any right granted or protected by the FHA.
  2. For an interference claim, a substantive violation of the FHA is not required, and a claim can arise before or after the plaintiff requires housing.
  3. To prove interference, plaintiff has to show: 1) the plaintiff exercise or enjoyed any right granted or protected under the FHA; 2) the defendant’s conduct constituted interference; and 3) a causal connection existed between the exercise or enjoyment of the right and the defendant’s conduct.
  4. Interference is not defined by either the FHA or its implementing regulations. Accordingly, the word must be understood by its ordinary meaning.
  5. The court relied on cases from the Ninth Circuit saying that interference for purposes of §3617, means the act of meddling in or hampering an activity or process. Also, that interference is broadly applied to reach all practices having the effect of interfering with the exercise of rights under federal fair housing laws.
  6. Interference under §3617 may (emphasis mine) consist of harassment if it is sufficiently severe or pervasive so as to create a hostile environment.
  7. Such a view is consistent with the Department of Housing and Urban Development, as after oral argument, the Department of Housing and Urban Development issued a regulation allowing hostile environment harassment claims because of handicap. In particular, that regulation provides that harassment can be written, verbal, or other conduct and does not require any physical contact. Further, a single incident of harassment because of handicap constitute a discriminatory housing practice if that incident is sufficiently severe to create a hostile environment.
  8. Harassment intruding upon the well-being, tranquility, and privacy of the home is considered particularly invasive.
  9. Material issues of disputed fact exist with respect to the interference claims. In particular, if the plaintiff barred the Association from reviewing the accommodation request, then no interference occurred. However, if there was not such a ban, then the Association did interfere with the rights by failing to review the request for reasonable accommodation of their disabilities.
  10. Genuine issues of material fact exist over the inferences that can be reasonably drawn from Felice’s blog posts. That is, a reasonable jury could find that Felice’s harassment was sufficiently severe or pervasive so as to interfere with the plaintiff’s fair housing rights. They could also find that there was a causal connection that the harassing conduct was the result of the plaintiff’s exercise of their FHA rights.
  11. Genuine issues of material fact also exists as to whether Talkington interfered with the plaintiff’s fair housing rights when he wrote on his blog all the things that he did. In particular, a reasonable jury could find that his conduct constituted harassment sufficiently severe or pervasive so as to interfere with the plaintiff’s fair housing rights. They also could reasonably find a causal connection between his conduct and the exercise of the plaintiffs fair housing rights.

IV

Takeaways:

  1. The ADA has a far narrower treatment of dogs than the federal housing act. The ADA is focused on recognition and response, as discussed in this blog entry, and not on emotional support. The FHA also allows other animals besides dogs.
  2. Certification of service dogs is a real problem due to the certification mills. The ADA and the FHA differ here with the FHA going further than the ADA when it allows the owner to take reasonable steps to verify the need for an emotional support animal.
  3. If a person exercises his rights and that results in social media blowback, that blowback may be interference under the FHA.
  4. Interference includes hostile environment, but that is not the only thing it includes. The dictionary definition of interference is far broader than just hostile environment.
  5. Training training training. Also, have a policy for dealing with the situation of when a resident request a service dog or an emotional support animal.
  6. If you are going to fine someone for having a dog, get legal advice first before doing so. I can only begin to imagine the total costs of legal fees incurred by the defendant here and that is before any fee shifting.
  7. One wonders if either plaintiff could have had a claim for intentional infliction of emotional distress.
  8. People with mental health conditions (such as generalized anxiety disorder, depression, etc.), face the real deal that goes beyond just stress. Often times, that can be managed with medication or without, but regardless, a different kettle of fish than stress.
  9. No reason why the discussion about whether FHA claims survive and the discussion about interference would not equally apply to the ADA since the law’s remedial purposes are similar and the interference statutory provisions are virtually identical.
  10. The ADA case law on interference is very scarce, and this case could be of great help, especially to plaintiff’s, when it comes to assessing whether interference claims exist.
  11. Interference causation is quite broad. The question is whether there was an exercise of rights followed by an adverse reaction to that exercise.