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It has been a while since I blogged on the EEOC running Covid-19 guidance. The EEOC just came out with some more updates (it very well could be the last one for a while considering Covid-19 is now endemic), so I thought I would return to it. The blog entry is only going to focus on the updates that they made on May 15, 2023. You can find the full guidance here. As I did the last time I did this, I will list out the updated sections of the guidance and then put my thoughts underneath that section. So, the blog entry is not divided into our typical categories. There are some 31 updates from the last time they updated the guidance document.

 

  1. Disability-Related Inquiries and Medical Exams

The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee.

Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.  For more information on the timing of disability-related inquiries and medical examinations for applicants, see Section C.

Under the ADA (which is applicable to the Federal sector through the Rehabilitation Act of 1973), once an employee begins work, any disability-related inquiries or medical exams must be “job-related and consistent with business necessity.” One way inquiries and medical examinations meet this “business necessity” standard is if they are necessary to determine whether a specific employee has a medical condition that would pose a “direct threat” to health or safety (a significant risk of substantial harm to self or others that cannot be addressed with reasonable accommodation). For more information on reasonable accommodation, see Section D. Where met, the “business necessity” standard allows for consideration of whether a person may have COVID-19, and thus might pose a “direct threat.” For information on disability-related questions and COVID-19 vaccinations, see K.7.– K.9.

CDC has updated its guidance over the course of the pandemic and may continue to do so as the pandemic evolves and as CDC acquires more information about the virus and different variants. The ADA “business necessity” standard requires that employers utilize the most current medical and public health information to determine what inquiries/medical examinations are appropriate. 

A.1. If an employee calls in sick, how much information may an employer request from the employee in order to protect the rest of its workforce and others (e.g., customers) from infection with COVID-19? (Updated 5/15/23)

If an employee calls in sick, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified by CDC. If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others.  See A.4., which also addresses following a CDC-recommended period of isolation.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

My thoughts: the EEOC references the CDC recommended period of isolation and also notes that employers have to maintain all information about employee illness as a confidential medical record in compliance with the ADA. Keep in mind, that CDC guidances can be very fluid.

A.2. Where can employers obtain current information on symptoms associated with COVID-19? (Updated 5/15/23)

The list of symptoms commonly associated with the disease may change as public health authorities and doctors learn more and as different variants emerge . Employers should rely on CDC for guidance on symptoms currently associated with the disease. These sources may guide employers when choosing questions to ask employees. See also A.8., addressing the ability of an employer to ask employees if they have been diagnosed with or tested for COVID-19.

My thoughts: CDC guidances can be very fluid and not always easy to understand. Employers may want to consider having their own infectious disease specialist on board when possible.

A.3. When may an ADA-covered employer take the body temperature of employees in an effort to screen for COVID-19? (Updated 5/15/23)

Measuring an employee’s body temperature is a medical examination. See A.6. for a discussion of the type of assessment an employer must do to justify requiring a medical examination (or requiring employees to answer disability-related questions) under the ADA’s “business necessity” standard.  Employers may wish to consult CDC guidance or guidance from other public health authorities to determine if an elevated temperature is a possible indication of infection.  If it is, then taking the temperature of employees will meet the ADA standard.

My thoughts: we have discussed just what is a medical examination in this blog before, such as here. We have also discussed the business necessity standard as well, such as here.

A.4. Does the ADA allow employers to require employees to stay home if they have COVID-19 or symptoms of COVID-19? (Updated 5/15/23)

Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19 should stay home.  The ADA does not prevent employers from following CDC advice.  See also A.1., which addresses the information an employer may request when an employee calls in sick.

My thoughts: CDC guidances can be very fluid and not always easy to understand. Employers may want to consider having their own infectious disease specialist on board when possible.

A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (Updated 5/15/23)

Yes. Employers may ask all employees who will be physically entering the workplace (or otherwise working in close proximity with others, such as clients) if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC.   Employers also may ask if these employees have been tested for COVID-19 (and if so, ask about the result).   An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace if consistent with CDC-recommended isolation protocols.   See also A.2.

My thoughts: Covid-19 is now endemic. So on a practical level, I am not sure how many employers are actually doing this or what is the utility of doing it. An employer might want to check with an infectious disease specialist if this is something the employer is thinking of doing.

A.9. May a manager require that a particular employee have a temperature reading or undergo COVID-19 viral testing, as opposed to imposing these medical examinations on all employees? (Updated 5/15/23)

Whether an employer wishes  to require a particular employee, or all employees, to have a temperature reading or to undergo COVID-19 viral testing, the ADA requires that the employer meet the “business necessity” standard because these are medical examinations. Therefore, it is important for the employer to consider why it wishes to require a medical examination. The ADA does not prevent employers from following recommendations by CDC regarding whether, when, and for whom testing (or other medical screening) is appropriate, because following CDC recommendations will meet the ADA “business necessity” standard.  For a discussion of screening testing for employees generally, see A.6.  For a discussion of taking temperature as a screening mechanism, see A.3.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is subject to medical examinations.

My thoughts: the key take away here is that a temperature reading or Covid-19 viral testing is a medical exam and must meet the business necessity standard (we discussed business necessity many times, including here), before being performed. Also as mentioned above, CDC guidelines can be very fluid.

A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Updated 5/15/23)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examination results, including COVID-19 test results. GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.

My thoughts: as this section illustrates, the ADA is not the only law an employer needs to be thinking about. The Genetic Information Nondiscrimination Act is another such law. For that matter, the FMLA is yet another.

A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take the employee’s temperature or refuses to answer questions about whether the employee has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (Updated 5/15/23)

An employer may ask employees if they have COVID-19, common symptoms of COVID-19 as identified by CDC, or have been tested for COVID-19 (and if so, ask about the result).  See A.1. and A.8.  An employer also may take an employee’s temperature or require a COVID-19 viral test as long as these medical examinations meet the ADA’s “business necessity” standard.  See A.3., A.6., and A.9.  If an employee refuses to cooperate by answering these questions or taking these medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace or otherwise working closely with others).

To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. For example, the employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The employer may reassure the employee that the ADA prohibits disclosure of employee medical information with limited exceptions. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

My thoughts: providing a business necessity exists, the employer can then take any action consistent with the policies and procedures should an employee refuse the testing. A separate question is who pays for any testing because the Covid-19 emergency has now ended. If the employer wants to prevent litigation and possibly losing a case, along the lines of what we discussed here, the employer should pay for it.

A.14. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (Updated 5/15/23)

No. Questions about where a person traveled would not be disability-related inquiries. Employers may wish to consult current CDC guidance regarding domestic or international travel for recommendations on what precautions, if any, are advisable after returning from certain destinations.  If an employer wishes to require a medical examination (e.g., requiring a COVID-19 viral test), it must meet the ADA’s “business necessity” standard.  See A.6. and A.9.

My thoughts: I don’t have any concerns/thoughts with respect to this section.

  1. Confidentiality of Medical Information

With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation.

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (Updated 5/15/23)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that the employee has the disease or suspects so, or the employer’s notes or other documentation from questioning an employee about symptoms. Similarly, information about an employee having Long COVID must also be treated as confidential. For information on confidentiality and COVID-19 vaccinations, see K.4.

My thoughts: all of the employee’s medical information can be stored in a single file that has to be kept separate from the personnel file.

  1. Hiring and Onboarding

Under the ADA, prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 5/15/23)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.

In addition, if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.  It is also permissible to screen a subset of applicants pre-offer if they fall into a specific category of individuals (including employees and others) that are subject to COVID-19 screening.  For example, if everyone entering a particular building on campus must undergo COVID-19 screening, an employer also may subject an applicant entering this building to the same screening, even though such screening is not routinely done when entering other buildings.  But note, an employer should not use this COVID-19 screening as an opportunity, pre-offer, to also ask applicants disability related questions and/or to conduct medical examinations that may only be done post-offer. For information on the ADA rules governing such inquiries and examination, see Section A.

My thoughts: the ADA has a disability related inquiries/medical examination scheme that we have talked about before, such as here. Whenever trying to figure out whether a disability related inquiry is involved, getting the help of employees with disabilities is a great idea because of their sensitivity to such questions.

  1. Disability and Reasonable Accommodation

Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

For more information on reasonable accommodation issues that may arise when employees return to the workplace, see Section G. For more information on reasonable accommodation and pregnancy-related disabilities, see Section J. For more information on reasonable accommodation and COVID-19 vaccinations, see K.1., K.2., K.5., K.6., and K.11.

D.3. In a workplace where employees are required to telework due to the COVID-19 pandemic, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until the employee returns to the workplace when mandatory telework ends? (Updated 5/15/23)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

My thoughts: activating the interactive process early is a good idea from both the employer and the employee perspective.

D.7. If there is some urgency to providing an accommodation, may an employer provide a temporary accommodation? (Updated 5/15/23)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, changes in government restrictions may affect the need for accommodations. Changes in how an employer conducts the interactive process may be necessary to suit changing circumstances based on current public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the temporary accommodation (for example, a specific date such as “May 30”). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

If an employee requests an extension of a temporary accommodation, the employer must consider it. The employer may take into account current circumstances, including the employee’s current disability related needs and any applicable government restrictions or public health directives).

My thoughts: you do see lots of colleges and universities provide temporary accommodations while the paperwork comes in. Stay away from requesting excessive documentation (we discussed excessive documentation here). I agree that there is nothing wrong with putting an end date on a temporary accommodation, but you want to make sure if you are ending it, that the accommodation no longer works. It is always a recipe for litigation to take away an accommodation that is working even if it should not have been granted in the first place.

D.8. May an employer invite employees to ask for reasonable accommodations they may need in the future in advance of a return to the workplace? (Updated 5/15/23)

Yes. Employers may inform the entire workforce that employees with disabilities may request accommodations in advance that they believe they may need when returning to the workplace either part-time or full-time. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the “interactive process”—the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

 

My thoughts: as mentioned above, an early start on what accommodations might be needed is a good idea from both the employer and the employee’s perspective.

D.10. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses “significant difficulty” (and therefore would be an undue hardship)? (Updated 5/15/23)

An employer may consider whether current circumstances related to the COVID-19 pandemic create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

My thoughts: several years back, I heard then Commissioner Chai Feldblum speak. She mentioned that the best way to think of logistical undue hardship was in terms of fundamental alteration in the title II and title III context. I have always agreed with that approach. Lawyers are literalists, and one wonders from reading this particular section whether the EEOC is suggesting that “significant difficulty,” may not be as high of a standard as fundamental alteration. If this is indeed what the EEOC is suggesting, this is quite significant and concerning for persons with disabilities.

D.11. May an employer consider circumstances related to the COVID-19 pandemic when  determining if a requested accommodation poses “significant expense” (and therefore would be an undue hardship)? (Updated 5/15/23)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). Current pandemic conditions make it less likely that they would be the foundation for finding  “significant expense,” although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment.  But, consideration of any relevant pandemic-related reasons does not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account any constraints created by this pandemic. Even under pandemic-related circumstances, there may be many no-cost or very low-cost accommodations that effectively meet the employee’s disability-related needs.

My thoughts: unlike D10 possibly, EEOC is not backing off on financial undue hardship being determined based upon the entire resources of the entity. I recently saw a report, here, from the Job Accommodation Network that over 50% of reasonable accommodation costs an employer absolutely nothing and the median cost being $300. I can count on one hand the number of cases that I have seen that have said a financial undue hardship is present. For a blog entry discussing just what it means to be looking at the entire resources of the entity when it comes to financial undue hardship, see this blog entry.

D.19.  What are examples of reasonable accommodations that may assist employees with Long COVID? (5/15/23)

The possible types of reasonable accommodations to address various symptoms of Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace.  Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.  The Job Accommodation Network has information on a variety of possible reasonable accommodations to address specific symptoms of Long COVID.

My thoughts: long Covid-19 is now a part of the guidance. With respect to any reasonable accommodation, the question should be what gets the person with a disability to the same starting line as a person without a disability. Creativity is the norm and don’t get stuck in boxes. I absolutely agree with contacting the Job Accommodation Network when needed. Also, don’t forget about the do’s and don’ts of the interactive process, which we discussed here.

D.20.  As a result of the end of the COVID-19 Public Health Emergency on May 11, 2023, may employers automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances? (5/15/23)

No.  This emergency declaration dealt with issues involving health care coverage and access to treatment.  It did not address the ADA and Rehabilitation Act requirements regarding provision of reasonable accommodation.  Therefore, the end of this Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19).  However, an employer may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.  Consistent with the ADA’s “business necessity” standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.

My thoughts: I personally like that the EEOC made this point as it points out a trap people could fall into. As mentioned previously, the EEOC is serious about a business necessity being present in order to make disability related inquiries or perform medical exams of an employee.

  1. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.2. Are there steps an employer should take to address possible harassment and discrimination against employees in connection with the pandemic? (Updated 5/15/23)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may want to provide illustrations of pandemic-related harassment for supervisors, managers, and all other employees to help them understand what actions may violate the EEO laws. For example, one illustration might show a supervisor or coworker violating the ADA/Rehabilitation Act by harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions. Another illustration might show a supervisor or coworker violating Title VII by harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination. (See E.3. for an additional example of pandemic-related harassment.) Finally, an employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

My thoughts: hostile work environment for persons with disabilities is something that actually exists. (See this blog entry for example. See also this blog entry ). One thing to be on the lookout for is harassment of people who decide to wear mask for a variety of different reasons. The best policy here is to be clear to the employees that employees are perfectly free to mask or not and the employees should respect that choice.

  1. Pregnancy

J.2. Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are 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 provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII. For information on pregnancy and COVID-19 vaccination, see K.13.

My thoughts: there are actually three federal laws now dealing with accommodating a person who is pregnant. Those laws include the ADA and the Pregnancy Discrimination Act, as mentioned above. However, we also have the Pregnant Workers Fairness Act now. It’s interesting that the EEOC ignored the Pregnant Workers Fairness Act, which we discussed here. I just read that the EEOC is supposed to come out with regulations for the Pregnant Workers Fairness Act at the end of June but is unlikely to do so. Part of the problem with the regulations, may be that the EEOC is currently split 2-2 between the political parties with one vacancy. Hopefully, the EEOC will come up with regulations. In any event, I have long said that when it comes to pregnancy, thinking like an ADA attorney dealing with reasonable accommodation requests is really good preventive law. Until regulations come out, attorneys and employers would be wise to go about their business when it comes to accommodating people who are pregnant by thinking along the lines of the ADA reasonable accommodation process. I also refer you to Robin Shea’s excellent blog entry dealing with the Pregnant Workers Fairness Act, which can be found here.

  1. Vaccinations – Overview, ADA, Title VII, and GINA

Note: Court decisions upholding or rejecting federal vaccination requirements do not affect any statements made in this publication regarding employer and employee rights and responsibilities under the equal employment opportunity laws with respect to employers that require COVID-19 vaccinations.

COVID-19 Vaccinations:  EEO Overview

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?  (Updated 5/15/23)

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 (provided testing is consistent with the ADA “business necessity” standard for medical examinations; see A.6.), be given the opportunity to telework, or finally, accept a reassignment.

Employees who choose not to be 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.

My thoughts: the only thing confusing here is that reasonable accommodations does not mean the same thing for religion as it does for people with disabilities, but the EEOC appears to be conflating the two. The Supreme Court recently heard oral argument about whether reasonable accommodations with respect to religion should mean the same thing as reasonable accommodation with respect to disability. Judging from that oral argument, it is absolutely impossible to guess how the Supreme Court will deal with that issue. It may be June before we find out. Also, the very last paragraph of this section is a bit out of date thanks to the Pregnant Workers Fairness Act that recently signed into law.

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

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16. Does the ADA limit the value of the incentive employers may offer to employees for receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 5/15/23)

No.  If the health care provider administering a COVID-19 vaccine is not the employer or its agent the ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to receive a COVID-19 vaccination, or to provide confirmation of vaccination. This is because the ADA’s rules about when disability-related inquiries may be asked and medical examinations required only apply when it is the employer or its agent asking the questions or requiring the medical exam.  See K.9.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.  Even if an employer requires employees to receive vaccination or provide confirmation of vaccination, as long as it is not required to be administered by the employer or its agent, the ADA does not limit the value of incentives offered, whether rewards or penalties.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

My thoughts: I don’t have any concerns with this section. Undoubtedly, this can get confusing.

 

N

COVID-19, Long COVID, and the ADA

“Actual” Disability

N.1. How does the ADA define disability, and how does the definition apply to COVID-19 and Long COVID? (Updated 5/15/23)

The ADA’s three-part definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

  • “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
  • “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
  • “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19, Long COVID, and the ADA

“Actual” Disability

My thoughts: while it is absolutely true that not every impairment will constitute an ADA disability under the ADA as amended, it is very rare after the amendments to the ADA, that a disability will not be found. Remember, the EEOC will tell you that most disabilities should not require extensive analysis. That said, the ADA is always about an individualized analysis.

 

N.2.

When is COVID-19 or Long COVID an actual disability under the ADA? (Updated 5/15/23)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 or Long COVID has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 or Long COVID substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 and Long COVID are physiological conditions affecting one or more body systems. As a result, they are each a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 or Long COVID may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 or Long COVID also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 or Long COVID need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 or Long COVID do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 or Long COVID substantially limit a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures—i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 or Long COVID substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.  Examples of mitigating measures for Long COVID include medication or treatment, respiratory therapy, physical therapy, and mental health therapy.

Episodic Conditions: Even if the symptoms related to COVID-19 or Long COVID come and go, COVID-19 or Long COVID is an actual disability if it substantially limits a major life activity when active.

My thoughts: after the amendments to the ADA, an actual disability can be a disability that doesn’t last terribly long if it is a physical or mental impairment that substantially limits a major life activity. I would be wary about getting in a box of how long the disability will last before an actual disability is found. This is especially so since Covid-19 symptoms can be severe in the short term and can last a long time or just for some time.

N.3. Is COVID-19 always an actual disability under the ADA? (12/14/21)

No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.

My thoughts: absolutely true that an individualized analysis is always required. That said, hard to believe that Covid-19 will not be an actual disability in most cases.

N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? How can Long COVID substantially limit a major life activity? (Updated 5/15/23)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
  • An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

For information on possible services and supports for individuals with Long COVID, see the report issued by the U.S. Dept. of Health and Human Services.

“Record of” Disability

My thoughts: as mentioned above, I would be cautious about using timelines with respect to assessing whether a disability exists after the amendments to the ADA. Also, don’t forget about the record of a disability prong as well.

N.5. Can a person who has or had COVID-19 or Long COVID be an individual with a “record of” a disability? (Updated 5/15/23)

Yes, depending on the facts. A person who has or had COVID-19 or Long COVID can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or Long COVID, or the person’s employer mistakenly believes the person has COVID-19 or Long COVID? (Updated 5/15/23)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19 or Long COVID, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

My thoughts: I get with the EEOC is saying about transitory and minor in this section. It is basically black letter law so to speak. However, keep in mind that we don’t know whether Covid-19 will last six months or less once a person gets Covid-19. Not everyone gets long Covid-19 but many do. Finally, keep in mind that for the regarded as exception to apply, the impairment must be BOTH transitory and minor.

 

 

With Thanksgiving week coming up and my wife and daughter coming back from a college trip later today, I thought I would get a blog entry up this weekend for the Thanksgiving week.

It has been a while since we talked about EEOC guidance on Covid-19. In fact, since our last discussion, the EEOC has updated it twice. The first time focused on accommodating sincerely religious beliefs. Since that wasn’t exactly an ADA issue, I didn’t jump in at that time. However, their most recent updates definitely impacts the ADA universe. So, it is time to cover the latest two updates to the guidance. The blog entry will take the updated section verbatim that we have not covered and then at the end of that particular section I will give my thoughts and takeaways. §L and M of the guidance will all be covered in their entirety. §K just has certain section that were added since the last time we wrote about this.

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 against COVID-19?    (Updated 10/13/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. (See Section L, Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).

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 against 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 vaccination 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 barriers to receiving a COVID-19 vaccination, 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:

  1. Keep in mind that undue hardship for accommodating sincerely religious beliefs and undue hardship for accommodating persons with disabilities do not at all mean the same thing.
  2. Open question as to whether an employer requiring all Applicants to be vaccinated for Covid-19 would not be a prohibited disability related inquiry. I have seen at least one management attorney make that argument. Remember, that the ADA has a scheme for dealing with disability related inquiries and medical exams, which we discussed here.

K.3.  How can employers encourage employees and their family members to be vaccinated against COVID-19 without violating the EEO laws, especially the ADA and GINA?   (Updated 10/13/21)

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. Employers also may work with local public health authorities, medical providers, or pharmacies to make vaccinations available for unvaccinated workers in the workplace.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccinations, as discussed in K.16 – K.21. The federal government is providing COVID-19 vaccines at no cost to everyone 12 years of age and older.

There are many resources available to employees seeking more information about how to get vaccinated against COVID-19:

  • The federal government’s online vaccines.gov site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov for Spanish).  Individuals also can text their ZIP  code to “GETVAX” (438829)–or “VACUNA” (822862) for Spanish–to find three vaccination locations near them.
  • Employees with disabilities (or employees’ family members with disabilities) may need extra support to obtain a vaccination, such as transportation or in-home vaccinations.  The HHS/Administration for Community Living has launched the Disability Information and Assistance Line (DIAL) to assist individuals with disabilities in obtaining such help.   DIAL can be reached at: 888-677-1199 from 9 am to 8 pm (Eastern Standard Time) Mondays through Fridays or by emailing DIAL@n4a.org.
  • CDC’s website offers a link to a listing of local health departments, which can provide more information about local vaccination efforts.
  • In addition, CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting a COVID-19 vaccine.  Although originally written for essential workers and employers, it is useful for all workers and employers.  See Workplace Vaccination Program | CDC.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no English or have limited English proficiency and find it difficult to make an appointment for a vaccination over the phone. 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 serving vaccination sites available in their community and offer paid time-off for vaccination, particularly if transportation is not readily available outside regular work hours.
  • 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.

Thoughts/takeaways: K3 is self-explanatory and don’t have anything to add.

The ADA and COVID-19 Vaccinations

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (Updated 10/13/21)

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information. Although the EEO laws do not prevent employers from requiring employees to provide 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: self-explanatory but very important to remember.

Mandatory Employer Vaccination Programs

K.9.  Does the ADA prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a COVID-19 vaccination?   (Updated 10/13/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccination, the employer is not asking the employee 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 besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules about making 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, as discussed in K.4.

Thoughts/takeaways: As mentioned previously, I have seen attorneys make the argument that requiring proof of vaccination prior to a conditional job offer might be a disability related inquiry prohibited by the ADA. However, this section is referring to Employees, which can make a big difference in the analysis. The EEOC is saying that with respect to employees the ADA does not prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a Covid-19 vaccination because there are variety of reasons why they may not show documentation or other confirmation of vaccination besides having a disability.

 

Title VII and COVID-19 Vaccinations

K.13.  Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?   (Updated 10/13/21)

CDC recommends COVID-19 vaccinations for everyone aged 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future.  Despite these recommendations, some pregnant employees may seek job adjustments or may request exemption from a COVID-19 vaccination requirement.

If an employee seeks an exemption from a vaccination 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 VII.

Thoughts/takeaways: this particular section is really nothing more than an explanation of the Young case, which we referenced here. While pregnancy is not a disability per se, the side effects of pregnancy might be. Also, dealing with pregnancy because of Young means going through the same reasonable accommodation analysis as you would for a person with a disability.

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. 

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 health care provider that is not affiliated with their employer (such as from the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 10/13/21)

No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department, 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: the key here is documentation or other confirmation of vaccination is coming from a healthcare provider unaffiliated with the employer.

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

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16.  Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?   (Updated 10/13/21)

No.  The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

Thoughts/takeaways: the key here is the employer offering an incentive to employees getting the Covid-19 vaccination from a healthcare provider that is Not affiliated with their employer.

K.17.  Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?   (Updated 10/13/21)

Yes.  When the employer or its agent administers a COVID-19 vaccine, the value of the incentive (which includes both rewards and penalties) may not be 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 to their employers or their agents. As explained in K.16., however, this incentive limit does not apply if an employer offers an incentive to encourage employees to be voluntarily vaccinated by a health care provider that is not their employer or an agent of their employer.

Thoughts/takeaways: different ballgame for when the employer or agent administers a Covid-19 vaccine. Here, you want to be very careful about the incentives you offer. Anything going beyond de minimis, might run the employer into trouble.

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.18.  Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?   (Updated 10/13/21)

No.  GINA does not limit the incentives an employer may offer to employees to encourage them or their family members to get a COVID-19 vaccine or provide confirmation of vaccination if the health care provider administering the vaccine is not the employer or its agent.  If an employer asks 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: no limit on the incentives an employer may offer to employees to encourage the employee or their family member to get a Covid-19 vaccine or provide confirmation of vaccination where the healthcare provider administering the vaccine is Not the employer or the employer’s agent.

L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances.  If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.  See generally Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act (RFRA), may also protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer?  If so, is there specific language that must be used under Title VII? (10/28/21)

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”).  Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.”  However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.

As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.

As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Persons not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)

Thoughts/takeaways: with respect to the reasonable accommodation request for a sincerely held religious belief, the activation of the request is the same as under the ADA. That is, magic words are not required.

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value?  May the employer ask for additional information? (10/25/21)

Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.  An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.  See generally Section 12-IV.A.2: Religious Discrimination.

The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers.  While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it.  By contrast, Title VII does not protect social, political, or economic views, or personal preferences.  Section 12-I.A.1: Religious Discrimination (definition of religion).  Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

The sincerity of an employee’s stated religious beliefs also is not usually in dispute.  The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.”  Section 12-I.A.2: Religious Discrimination (credibility and sincerity).  Factors that – either alone or in combination – might undermine an employee’s credibility include:  whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Thoughts/takeaways:

  1. Until many people started utilizing sincerely held religious beliefs as a way of circumventing Covid-19 vaccination requirements, the practice was that employers assumed that a request for religious accommodation was based on a sincerely held religious belief. They could do that because it doesn’t take much for something to rise to an undue hardship with respect to accommodating religious beliefs.
  2. If the employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, the employer is justified in making a limited factual inquiry and seeking additional information. The employee then has to cooperate with any reasonable request from the employer for verification of the sincerity or religious nature of his or her belief or risk losing his or her claim that the employer improperly denied an accommodation.
  3. Unfamiliar religious beliefs can be a religious belief. Social, political, or economic views, or personal preferences do not qualify for protection.
  4. Factors the EEOC says to consider in trying to determine whether the employee has a credible sincerely held religious belief include: 1) whether the employee has acted in a manner inconsistent with the professed belief, though they do not need to be scrupulous in their observance; 2) whether the accommodation sought is a particularly desirable benefit likely to be sought for nonreligious reasons; 3) whether the timing of the request renders it suspect; and 4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. No one factor or consideration is determinative, and an employer needs to evaluate religious objections on an individual basis.
  5. With respect to §4 of my thought takeaways of this section, immediately above, it seems to me that it would be very hard to apply these EEOC factors in practice.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (10/25/21)

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodations for unvaccinated employees, see K.6, above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation.  42 U.S.C. § 2000e(j).  The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship.  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.  For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship).

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.  An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).  Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

Thoughts/takeaways: as mentioned above, undue hardship when it comes to accommodating religious views, for now anyway, is not at all the same thing as undue hardship when it comes to accommodating disabilities. Anything more than de minimus is an undue hardship for purposes of accommodating religious beliefs. It is proper to consider the burden of not getting a Covid-19 vaccination on the employer’s business.

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs? (10/25/21)

No.  The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.  A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

Thoughts/takeaways: figuring out the proper accommodation for sincerely held religious beliefs requires an individualized analysis just like the ADA.

L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (10/25/21)

No.  If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.  If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.  If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship.  See, e.g., K.2. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

Thoughts/takeaways: just like the ADA, an employer can choose the accommodation to offer. As with the ADA, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee if there is more than one reasonable accommodation that will work. Also, just like the ADA the employer needs to look at all possible alternatives short of an undue hardship.

L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it? (10/25/21)

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances.  Employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations.  Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.  As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.

Thoughts/takeaways: while this is all true and it is also true for the ADA, taking away accommodations is always a recipe for litigation. So if you are going to take away accommodations, you definitely want to to do that very deliberately and line up all your ducks in a row before doing it.

M. Retaliation and Interference

The anti-retaliation protections discussed here only apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Information about similar protections under other federal workplace laws, such as the Family and Medical Leave Act or the Occupational Safety and Health Act, is available from the U.S. Department of Labor. Information about similar protections under the Immigration and Nationality Act’s anti-discrimination provision, which prohibits some types of workplace discrimination based on citizenship status, immigration status, or national origin, and protects against retaliation for asserting those rights, is available from the Civil Rights Division of the U.S. Department of Justice.

M.1.  Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19? (11/17/21)

Yes.  Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the federal EEO laws.  The EEO laws prohibit workplace discrimination based on race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 or over), disability, or genetic information.  Speaking out about or exercising rights related to workplace discrimination is called “protected activity.”

Protected activity can take many forms.  For example, an employee complaining to a supervisor about coworker harassment based on race or national origin is protected activity.  Witnesses to discrimination who seek to assist individuals affected by discrimination are also protected.  Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.

M.2. What are some examples of employee activities that are protected from employer retaliation? (11/17/21)

  • Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely. For example, employers may not retaliate against employees who file charges with the EEOC alleging that their supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), even if the EEOC later decides there is no merit to the underlying charges.  Moreover, a supervisor may not give a false negative job reference to punish a former employee for making an EEO complaint, or refuse to hire an applicant because of the applicant’s EEO complaint against a prior employer.
  • Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment. For example, an Asian American employee who tells a manager or human resources official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment. Workplace discrimination laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated. Similarly, workplace discrimination laws prohibit retaliation against an employee for reporting sexually harassing comments made during a work video conference meeting.
  • Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination. For example, workplace discrimination laws protect a supervisor who refuses to carry out management’s instruction not to hire certain applicants based on the sex-based presumption that they might use parental leave or have childcare needs, or to steer them to particular types of jobs.
  • Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied. For example, the EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens.  Similarly, requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is protected activity.  Requests for accommodation are protected activity even if the individual is not legally entitled to accommodation, such as where the employee’s medical condition is not ultimately deemed a disability under the ADA, or where accommodation would pose an undue hardship.

Thoughts/takeaways: I am already seeing a lot of cases coming my way where a person with underlying health conditions requests the accommodation of remote work. How that request gets handled can very much depend on whether your state has policies that are anti mask and anti-vaccine or not, particularly so if the employee is in the public sector.. The key is going to be what are the essential functions of the job and can they do that job with or without reasonable accommodations. You can bet that the fact that they did their job effectively remotely while everybody was on lockdown will be used by plaintiff attorneys to show that they can do the essential functions of the job now with or without reasonable accommodations.

M.3. Who is protected from retaliation? (11/17/21)

Retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal, or temporary. Retaliation protections also apply to job applicants and to former employees (such as when an employer provides a job reference). In addition, these protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

Thoughts/takeaways: any kind of employee, applicant, and former employees are all protected from retaliation. Those protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

M.4. When do retaliation protections apply? (11/17/21)

Participating in an EEO complaint process is protected from retaliation under all circumstances.

Other acts by a current, prospective, or former employee to oppose discrimination are protected as long as the employee is acting on a reasonable good faith belief that something in the workplace may violate EEO laws, and expresses those beliefs in a reasonable manner.  An employee is still protected from retaliation for making a complaint about workplace discrimination even if the employee does not use legal terminology to describe the situation.

Thoughts/takeaways:

  1. Because participating in the EEO complaint process is protected from retaliation under all circumstances, it can be very important for a plaintiff attorney to get that EEOC complaint filed quickly so as to minimize any possibilities of retaliation.
  2. Many places have internal grievance procedures but nothing requires a plaintiff to exhaust that internal grievance procedure first. A plaintiff will want to consult with their attorney to figure out whether the internal grievance procedure should be utilized or not. Since the EEOC does ask whether you went through internal grievance procedures when you file the complaint with them, you want to remember that the law does not require a futile act where the plaintiff knows that the internal appeal will be useless.
  3. Good faith can be determined as a matter of law. I am aware of cases where the plaintiff had a good faith belief subjectively that what they were doing was protected activity. However, the law was such that no person knowing the law would possibly believe that. In that situation, courts have said that a plaintiff could not have a reasonable good faith belief that something in the workplace was violating the EEO laws.

M.5. When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation? (11/17/21)

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.  Depending on the facts, this might include actions such as denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations.  Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights.  The fact that an individual is not actually deterred from opposing discrimination or participating in an EEO complaint-related process or activity does not preclude an employer’s action from being considered retaliatory.

However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

Thoughts/takeaways: the standard is an objective one focusing on the reasonable person. The key is whether the action deters a reasonable person from exercising EEO rights.

M.6.  Does this mean that an employer can never take action against someone who has engaged in EEO activity? (11/17/21)

No.  Engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons.  Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  For example, if an employee performs poorly, has low productivity, or engages in misconduct, an employer may respond as it normally would, even if the employee has engaged in protected activity.  Similarly, an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).

Thoughts/takeaways: this is certainly all true. However, make sure that everything is lined up properly as the risk of litigation is high in the situation.

M.7.  Does the law provide any additional protections to safeguard ADA rights? (11/17/21)

Yes.  The ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.  Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees.  For instance, it is unlawful for an employer to use threats to discourage someone from asking for a reasonable accommodation.  It is also unlawful for an employer to pressure an employee not to file a disability discrimination complaint.  The ADA also prohibits employers from interfering with employees helping others to exercise their ADA rights.

The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.

 

Thoughts/takeaways: interference is an extremely underutilized provision of the ADA. The most common place that I see it is when a higher up gets involved with the accommodation decision instead of the people directly involved with the workers seeking the accommodation. The other place that I see it a lot is in higher education where a professor refuses to carry out accommodations put in place by disability services. For how to go about proving up and interference claim, we discussed that here. I do not have an answer as to why interference claims simply do not come up a lot. That very well could change in the future.

Today’s blog entry deals with two questions when it comes to regarded as claims. First, just what does a person have to show to qualify for a regarded as claim? Second, for the transitory and minor exception to apply, must that be a situation where the illness is both transitory AND minor? As we will see, plaintiff survives a motion to dismiss on both grounds even though the court applies a pre-ADA amendments standard to the first question. The case of the day is Matias v. Terrapin House, Inc. decided by the United States District Court for the Eastern District of Pennsylvania on September 16, 2021, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why plaintiff’s regarded as claim survives the motion to dismiss; transitory and minor; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff was employed with Terrapin from approximately August 28, 2020 until November 22, 2020 as a direct support professional. She alleged that she received no discipline during the course of her employment until her termination on November 22, 2020. On that date, she informed Terrapin of her need for leave under the Family First Coronavirus Relief Act and disclose to Terrapin that she had received a positive Covid-19 test result. More particularly, on November 19, 2020 she texted a representative Terrapin to inform them that she felt ill. When the representative inquired into whether she was experiencing symptoms, she responded that she was losing her sense of taste and smell. Rather than provide leave, Terrapin terminated her on the same date she informed them of her positive Covid-19 test saying that she was not a good fit. She brought suit alleging violations of the Family First Coronavirus Response Act, the ADA, and the Pennsylvania Human Relations Act.

 

II

Court’s Reasoning Why Plaintiff’s Regarded as Claim Survives the Motion To Dismiss

 

  1. An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  2. To prevail, a plaintiff has to show that her employer misinterpreted information about her limitations to conclude that she was unable to perform a wide range or class of jobs.
  3. A plaintiff must show that the employer believed that a major life activity was substantially limited by the plaintiff’s impairment.
  4. An exception for ADA regarded as claims exists for impairments that are transitory and minor.
  5. In order to make out a regarded as claim, plaintiff must allege that her employer perceived her to have a disability and that her employer perceived that disability to substantially impair a major life activity.
  6. Citing to the joint guidance on long-haul Covid-19 put out by the DOJ and HHS, which we discussed here, Covid-19 is a physiological condition affecting one or more body systems.
  7. The guidance states that certain forms of Covid-19 can substantially limit major life activities, such as respiratory function, gastrointestinal function, and brain function for periods lasting months after first being infected.
  8. Loss of taste or smell is one of the common symptoms of long-haul Covid-19, and plaintiff felt that she was losing her sense of taste and smell.
  9. The immediate temporal proximity between plaintiff’s disclosure of her Covid-19 symptoms, her positive test result, and her termination raises a strong inference that her employer regarded her as disabled.

 

III

Transitory and Minor

  1. Courts have made clear that transitory and minor are two separate criteria and a defendant must establish both in order to prevail in its defense.
  2. CDC indicates that Covid-19 carries with it symptoms, including fever, chills, cough, shortness of breath, difficulty breathing, fatigue, muscle or body aches, headaches, new loss of taste or smell, sore throat, congestion, runny nose, nausea or vomiting, and diarrhea.
  3. According to the CDC, Covid-19 can damage the heart, blood vessel, kidneys, brain, skin, eyes, and gastrointestinal organs.
  4. The CDC recommends one seek immediate medical care if they experience trouble breathing, persistent pain or pressure in the chest, new confusion, inability to wake or stay awake, or pale, gray, or blue colored skin, lips, or nail beds.
  5. In a footnote, the court noted that it was taking judicial notice of certain facts regarding Covid-19 “posted by the CDC on its official website.
  6. On November 22, 2020, the day plaintiff was terminated, the CDC recorded over 176,000 new Covid-19 cases in the United States alone.
  7. The hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with Covid-19. While an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic Covid-19 hospitalization between August 1, 2020 and September 10, 2021 totaling over 2,876,000 people. So when viewed from the perspective of mortality, Covid-19 proves to be more deadly than the seasonal flu. Therefore, Covid-19 viewed objectively is not minor as contemplated by the amendments to the ADA.
  8. An employer may not defeat regarded as coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor. Instead, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.

IV

Thoughts/Takeaways

  1. Plaintiff survived a motion to dismiss despite the court applying the wrong standard in numerous places. You don’t see that a lot.
  2. The court refers to a plaintiff having to show that she was unable to perform a wide range or class of jobs. The only time this comes up is where the plaintiff alleges that working is the major life activity. Considering the amendments to the ADA, it is legal malpractice for a plaintiff’s attorney to allege working as the major life activity unless he or she absolutely has no other alternative. The wide range or class of jobs comes from Sutton v. United Airlines, here, which was overruled in many respects by the amendments to the ADA but not with respect to working as the major life activity.
  3. A plaintiff for a regarded as claim does not have to show that an employer believed that a major life activity was substantially limited. After the amendments, all a plaintiff has to show is that the employer regarded the individual as having a physical or mental impairment.
  4. Transitory and minor means exactly that. That is, for the transitory and minor exception for regarded as claims to come into play, the condition at issue must be BOTH transitory and minor. They are two separate criteria. As the court makes clear, Covid-19 is certainly not minor and it may or may not be transitory.
  5. Proximity between the adverse action and the right exercised always matters in these cases.
  6. Transitory and minor is an affirmative defense that must be established by the employer.
  7. The transitory and minor exception only applies to regarded as claims, though it can be helpful as a tool for figuring out whether a temporary disability is an actual disability per the actual disability prong.
  8. CDC guidelines was given judicial notice by the court. This could be very important for plaintiff attorneys to keep in mind when dealing with refusal to accommodate in the face of anti-mask and anti-vaccine policies where their client is immuno-compromised or at a much higher risk of severe consequences of getting Covid-19 due to underlying conditions.
  9. Transitory AND minor is an objective standard that is not dependent on an employer’s subjective belief.

Go Braves and White Sox! Congratulations to the Red Sox.

Next week, my daughter is on break and will be making college trips with each of her parents to different parts of the country. Then, all of us will meet up to see both sides of the family at the end of the week. So, I am hoping that I can get a blog entry up next week on either Wednesday, Thursday, or Friday. That said, it is going to be very hectic. So, do not be surprised if a blog entry does not go up next week. I anticipate my next blog entry will be posing a rebuttal to those pushing the medical model of disability in a big way when it comes to physician competency.

 

Today’s blog entry is a two for one. We are going to discuss two short cases. In the first, we will discuss the case, Nix v. Advanced Urology Institute of Georgia, that we previously blogged on here. The 11th Circuit in an unpublished decision affirmed that case. In the second, we will discuss the case of Heck v. The Copper Cellar Corporation, which presents the interesting question of what happens when you have an ADA disability discrimination case and statewide procedural hurdle for matters arising out of the Covid-19 pandemic. As usual, the blog entry is divided into categories and they are: why plaintiff justifiably appealed the lower court decision in Nix; the 11th Circuit Nix decision; Nix takeaways; Heck facts; Heck reasoning; and Heck takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Why Plaintiff Justifiably Appealed the Lower Court Decision in NIX

 

Previously, here, we discussed the lower court decision in Nix v. Advanced Urology Institute of Georgia. If you recall, the lower court granted summary judgment to Advanced Urology. In that blog entry, I said that the plaintiff should appeal it for the following reasons:

 

  1. While the court found that effective communication was not present here, it didn’t mention the standard in Silva I, which is: “To be ineffective communication, it is sufficient if the patient experiences a real hindrance, because of her disability, which affects her ability to exchange material medical information with her health care providers. This standard is consistent with the requirement that hospitals afford a level of communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”
  2. To show deliberate indifference in the 11th Circuit, Liese v. Indian River Community Hospital District, which we discussed here, a plaintiff has to show that the defendant: (1) knew they had failed to provide plaintiff with appropriate auxiliary aids necessary to ensure effective communication; (2) had the authority to order that aid be provided; and (3) was deliberately indifferent as to defendant’s failure to provide aid. A deliberate refusal to provide the auxiliary aid and service does constitute deliberate indifference under Silva I, discussed here.
  3. The court frequently cited to Silva II, here, which vacated the summary judgment on deliberate indifference but threw out the injunctive relief claim due to policy changes of the Defendant (the policy changes required: the provision of live in person interpreters upon request by a patient or guest; provided for VRI while waiting for a live interpreter; and provided for the scheduling of live interpreters for regularly scheduled appointments), as a basis for their decision. However, the impression created is not right. In Silva II, here, the 11th Circuit said that deliberate indifference by itself is not the exacting standard, per Nix’s understanding for example, rather deliberate indifference requires that the indifference be a deliberate choice, which is not the same thing.
  4. Silva II said that deliberate indifference occurs when the defendant knew that the harm to a federally protected right was substantially likely and failed to act on that likelihood. In other words, plaintiff must show ineffective communication done with knowledge that it was substantially likely to occur.

 

II
The 11th Circuit Nix decision

 

The 11th Circuit wasn’t having any of it. In particular, the 11th Circuit in an unpublished opinion reasoned as follows:

 

  1. The most plaintiff established was negligence in selecting an interpreter and not deliberate indifference to plaintiff’s rights.
  2. Defendant’s administrative personnel believed that the person she hired was a qualified interpreter.
  3. Defendant’s administrative personnel was told by a friend of the interpreter that the interpreter was qualified.
  4. Advanced Urology did not ignore plaintiff’s request for an interpreter.
  5. Plaintiff simply cannot prove deliberate indifference and therefore cannot recover any monetary damages, whether it be compensatory or nominal.

 

III

Nix Takeaways

 

The takeaways that I mentioned in my prior blog entry with additional modifications and additions, bear repeating.

 

  1. I, with co-counsel, have previously represented culturally deaf individuals (Deaf). From my experience, the culturally deaf can be a little too trusting of the hearing community at times. If you are representing a culturally deaf individual seeking medical care, you absolutely have to insist that he or she not go through with the appointment the minute they realize that a qualified interpreter is not there. They just HAVE TO WALK AWAY IMMEDIATELY. You have to tell the culturally deaf individual to not even engage in the exchange of written notes except for the purposes of saying that he or she needs a qualified interpreter.
  2. The court creates a higher standard for deliberate indifference than what was created in Liese, which we discussed here. It resembles more the deliberate indifference standard adopted by the Seventh Circuit in a case we discussed here.
  3. While the court says effective communication did not occur, they didn’t bring up the Silva I standard, which is whether communication was hindered.
  4. If you are representing a culturally deaf individual in a case like this, it becomes really important to have a table interpreter, an interpreter that acts very much as part of the legal team, who really understands how interpreting can go awry when a qualified interpreter is not involved. Also, be prepared to have an expert talk about the English ability levels of the plaintiff and the importance of ASL given that English ability (with respect to a culturally deaf individual, it is not unusual for such individuals to have English reading skills not higher than fourth grade if that).
  5. Prior to a culturally deaf individual walking away from the appointment, it is really helpful if the culturally deaf individual makes clear in writing that the interpreter is not qualified and that they will not take any medical care offered until a qualified interpreter is present. Make sure the person keeps a copy of that written notification as well.
  6. Depending upon your state, there may be informed consent concerns as well when a qualified interpreter is not provided for a culturally deaf individual. In the case that I served as co-counsel on, we had both informed consent claims as well as ADA claims in our complaint.
  7. Since the interpreter was not a qualified interpreter and not bound by an interpreter code of ethics, there may be a breach of confidentiality claims against the physician in this kind of scenario.
  8. Another problem I have with this opinion is that it rewards ignorance of the culturally deaf community. Anybody with familiarity of the culturally deaf community would not have hired this particular interpreter in the first place and would have instantly known that the interpreter was not qualified. Yet under this decision, the defendant is rewarded for their ignorance.
  9. One wonders if an en banc hearing would not be requested in light of the panel ignoring Silva I and its narrowing of Liese. I did not see anything in the docket to suggest that this is happening, at least not yet.
  10. The decision is unpublished. Even so, while its precedential value is limited, attorneys are going to look at this decision for guidance. Also, depending upon the jurisdiction there are ways that even an unpublished decision could be cited. I suppose the nature of an unpublished decision could be one reason why people focusing on disability rights might hope that an en banc review is not sought. That said, the 11th Circuit is generally very pro-disability rights and how this decision rewards ignorance of the culturally deaf community is not a good thing. Also, the decision severely narrows Silva I and Liese. So, maybe an en banc rehearing request is in order and might be successful.

 

IV

Heck Facts

 

  1. Plaintiff asserted claims for violation of the Tennessee Disability Act and the ADA based upon termination of her employment. In particular, she alleged that she was discriminated against because of her asthma and increased risk of serious illness from Covid-19 and that the defendant discharged her rather than accommodate her by limiting her risk of exposure. She sought compensatory damages for lost wages and emotional distress.
  2. Tennessee has a Covid-19 recovery act containing the following salient provisions: 1) a clear and convincing evidence standard; 2) requirement of a verified complaint pleading with specific facts from which a finder of fact could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct; 3) requirement of a certificate of good faith from plaintiff’s counsel saying that he or she has consulted with a Covid-19 knowledgeable physician duly licensed to practice in Tennessee or in a neighboring state and that the physician believes the Covid-19 was caused by the alleged act or omission of the defendant. Failure to meet the requirements laid out in this particular paragraph of the blog entry results in granting a motion to dismiss with prejudice.

 

V

Heck Reasoning

 

  1. The Tennessee law does not deprive federal courts of subject matter jurisdiction simply because some of the allegations relate to Covid-19.
  2. Plaintiff’s claims arise from the alleged discrimination and retaliation related to her asthma.
  3. While her request for accommodation related to her increased vulnerability to Covid-19, her claims do not arise from Covid-19 for purposes of the Tennessee law.
  4. The expansive reading of the Tennessee law advocated by the defendant would deprive federal courts of their ability to hear federal claims when there are state legislative procedural hurdles. Such a reading violates the most basic principles of federalism and leads to inconsistent application of federal law and inconsistent access to federal court based upon the forum state’s policy concerning state law claims.
  5. Plaintiff asserts a federal claim, and therefore the federal court plainly has jurisdiction.

 

VI

Heck Takeaways

 

  1. A lot of states have coronavirus liability laws now. This case shows that such laws are not going to bar federal disability discrimination claims nor should they.
  2. The decision denies a motion to dismiss. So, a trial is next. Of course, plaintiff will have to get by summary judgment.
  3. You are going to see a lot of claims dealing with failure to accommodate people who are an increased risk should they get Covid-19, especially in states with anti-mask and anti-vaccine mandates or policy preferences. The EEOC just filed such a claim in Georgia, here, and others are on the way no doubt. In those situations, objective medical science will be critical. Plaintiffs will want to have access to the medical science, which is publicly available, and access to coronavirus experts wouldn’t hurt either.
  4. Individual cases may go differently depending upon the location you are in. For example, if you are in a jurisdiction that is mandating vaccines and mandating mask wearing, the whole accommodation process can go quite a bit differently. In jurisdictions with anti-mask and anti-vaccine mandates/policy preferences, work from home is going to be something that will have to be seriously considered.
  5. Definitely read Chevron v. Echazabal, here, and School Board of Nassau County, Florida v. Arline, here. Both of those cases discussed direct threat and direct threat as discussed in those cases has been incorporated into ADA final regulations, here (title I), here (title II), and here (title III).

Today’s blog entry discusses the CDC Guidance For Institutions Of Higher Education Updated June 4, 2021. In short, if you are an institution of higher education you have to strongly consider mandating proof of vaccination for students, faculty, staff, and visitors unless you are in a State that has an executive order or law that prohibits you from doing so. Many colleges and more every day are doing precisely this. Further, Rhodes College in Memphis Tennessee has added a surcharge of $1500 for any student that is not vaccinated to cover Covid-19 tests etc.

 

Let’s look at the guidance to see why institutions of higher education (IHE), should seriously consider mandating proof of vaccination for its students. Also, there is now a federal court decision saying that employers have a perfect right to mandate vaccines for their employees. I previously discussed here why employers have a perfect right to insist that their employees be vaccinated absent disability or sincerely religious held belief. As usual, the blog entry is divided into categories and they are: fully vaccinated campuses; campuses that are not fully vaccinated; general consideration for all IHE’s; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Highlights of the CDC Guidance: Fully Vaccinated Campuses

 

  1. IHE can help increase vaccine uptake among students, faculty, and staff by providing information about and offering Covid-19 vaccination, promoting vaccine trust and confidence, and establishing supportive policies and practices making vaccination as is easy and convenient as possible. I recently read a big article in the Wall Street Journal about the University of Florida’s efforts in this regards with respect to the communities surrounding it.
  2. IHE can consider verifying vaccination status of their student, faculty, and staff.
  3. IHE with fully vaccinated students, faculty, and staff can refer to CDC’s previous guidance for fully vaccinated people, which basically allows people to go mask free without social distancing except in crowded indoor areas.
  4. IHE where all students, faculty, and staff are fully (emphasis in the guidance), vaccinated prior to the start of semester, can return to full capacity in person learning without requiring masking or physical distancing for people who are fully vaccinated.
  5. When holding gatherings and events that include individuals who are not fully vaccinated such as campus visitors from outside of the IHE, the IHE needs to utilize appropriate prevention strategies to protect people who are not fully vaccinated.
  6. Students, faculty, and staff who are fully vaccinated do not need to wear masks, except where required by federal, state, local, tribal, or territorial laws, rules and regulation, including local business and workplace guidances. While fully vaccinated person do not generally need to wear masks, CDC recommend continued masking and physical distancing for people with weakened immune systems. IHE need to be supportive of students, faculty, or staff who choose to continue to wear a mask for any reason.
  7. Physical distancing is not necessary for fully vaccinated students, faculty, and staff on campus for IHE where everyone is fully vaccinated.
  8. People who are fully vaccinated in shared housing per the prior CDC guidance are pretty much free to go about their business mask free.
  9. People who are fully vaccinated do not need to undergo routine Covid-19 screening testing. If a fully vaccinated person is exposed to someone with Covid-19, they also do not need to be tested unless they are experiencing Covid-19 symptoms.
  10. Students, faculty, and staff with signs or symptoms of infectious illness should be encouraged to stay home when sick and/or seek medical care.
  11. People who are fully vaccinated with no Covid-19 symptoms do not need to quarantine or be restricted from work following an exposure to someone with suspected or confirmed Covid-19, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidances.
  12. Students, faculty, and staff who are fully vaccinated can refrain from testing following a known exposure if they are asymptomatic. People who are fully vaccinated should continue to get tested if experiencing Covid-19 symptoms. Also, students, faculty, and staff who are fully vaccinated can refrain from routine screening testing.
  13. Fully vaccinated people with no Covid-19 like symptoms and no known exposure should be exempted from routine screening testing programs.

 

II

Highlights of the CDC Guidance: Campuses That Are Not Fully Vaccinated

 

  1. IHE administrators should create programs and policy facilitating the adoption and implementation of prevention strategies necessary to slow the spread of Covid-19 at the IHE and in the local community. Prevention strategies include: offering and promoting vaccination; consistent and correct use of mask; physical distancing; handwashing and respiratory etiquette; contact tracing in combination with isolation and quarantine; testing for Covid-19; maintaining healthy environments (increased ventilation and cleaning); and maintaining healthy operations (communication, supportive policies and health equity).
  2. Consistent and correct masks use by people who are not fully vaccinated is especially important indoors and in crowded settings when physical distancing cannot be maintained.
  3. Mask use is recommended for people who are not fully vaccinated, including children.
  4. In general, people do not need to wear masks when outdoors. CDC does recommend that people who are not fully vaccinated wear a mask in crowded outdoor setting or during activities involving sustained close contact with other people who are not fully vaccinated.
  5. Exception for masks wearing need to be made for people with disabilities who cannot wear a mask due to their disability.
  6. Exceptions need to be made for person wearing a mask that would create a risk to workplace health, safety, or job duty at determined by the relevant workplace safety guidelines are federal regulations.
  7. People who are not fully vaccinated should continue to practice physical distancing, which means keeping space of at least 6 feet between people not from your household in both indoor and outdoor spaces.
  8. Physical distancing promotion strategies include: hosting virtual only activities, events, and gatherings of all sizes; holding activities, events, and gatherings outdoors in areas that can accommodate physical distancing when possible; facing out or blocking off roads, chairs, and/or table seating position in communal use shared spaces (such as classroom, dining halls, locker room, laboratory facility, library, student centers, and lecture room); and limiting occupancy and requiring mask use by people who are not fully vaccinated, including drivers, and on campus buses/shuttles or other vehicles. Alternate or block off roads and increased ventilation (i.e. opening windows if possible).
  9. IHE can designate fully vaccinated dorms, floors or complexes and those areas get to follow the CDC guidance for fully vaccinated people.
  10. IHE should consider housing students who are not fully vaccinated in single rooms instead of shared rooms when feasible.
  11. IHE should consider establishing cohorts of people who are not fully vaccinated, such as groups of dorm rooms or dorm floors that do not mix with other cohorts to minimize transmission across cohorts and facilitate contact tracing. All units sharing a bathroom should be included in a cohort. Roommate/suite mates can be considered a household and do not need to use mask or physically distance within the household unit (dorm room or suite), unless someone in the household is ill.
  12. IHE should close or limit the capacity of community use shared spaces such as dining areas, game room, exercise room, and lounges, if possible to decrease mixing among non-cohort people who are not fully vaccinated.
  13. IHE should consider limiting use of communal use shared space to people who are fully vaccinated.
  14. IHE should consider limiting building access by nonresidents, including outside guests and nonessential visitors to dorms in residence halls.
  15. IHE should conduct diagnostic or screening testing of student, faculty, and staff for purposes of surveillance or in the context of an outbreak but those recommendations vary depending upon whether a person is fully vaccinated or not.
  16. IHE may consider maintaining documentation of individual vaccination status to inform testing, contact tracing effort, and quarantine/isolation practices. Any such vaccination information should be obtained with appropriate safeguards to protect personally identifiable information and HIPAA sensitive information from unlawful release.

 

III

General Consideration for All IHE

 

  1. Cleaning high touch surfaces and shared objects once a day is usually enough to sufficiently remove virus that may be on surfaces unless someone with confirmed or suspected Covid-19 had been in your facility.
  2. Improving ventilation is an important Covid-19 prevention strategy.
  3. Staff and volunteers should be required to wash their hands and encourage diners to wash their hands or use an alcohol-based hand sanitizer before and after serving or eating.
  4. In indoor dining areas, people who are not fully vaccinated should wear a mask when not actively eating or drinking and physically distance.
  5. Prioritize outdoor dining and improve ventilation in indoor dining spaces.
  6. Particularly in areas with substantial to high levels of community transmission, reduce seating capacity, use markers and guides to ensure that people remain at least 6 feet apart in a mixed campus when waiting in line for pick up. Also, stagger use of dining areas.
  7. Consider offering to go options and serve individually plated meals. If traditional self-serve plates are offered, check out the CDC recommendations in order to reduce the risk of getting and spreading Covid-19.
  8. People who are not fully vaccinated should continue to avoid large gatherings, but if they choose to attend they should wear well fitting masks covering the mouth and nose and maintain physical distancing while practicing good hand hygiene.
  9. For campuses with both fully vaccinated individuals and individuals who are not fully vaccinated, in person instruction should be prioritized over extracurricular activities, (including sports and school events), in order to minimize risk of transmission in schools and to protect in person learning. Mixed campuses may consider limiting the size of gathering to maintain physical defense as an additional measure.
  10. People who are fully vaccinated no longer need to wear a mask or physically distance in any setting including while participating in sports. People who are fully vaccinated can also refrain from quarantine following a known exposure if asymptomatic.
  11. Players, coaches, trainers, etc. who are not fully vaccinated are at an increased risk for getting and spreading Covid-19. Further, close contact in indoor sports are particularly risky.
  12. IHE should postpone programs in a nation with very high Covid-19 levels, and they should have plans in place to take action in situations where Covid-19 levels become very high during the program.
  13. IHE may consider requiring vaccination as a condition of a study abroad program.

 

IV

Thoughts/Takeaways

 

  1. As a preventive law measure, IHE should mandate proof of vaccine for students wanting to return to campus.
  2. Depending upon location of the IHE, mandating proof of vaccine for return the campus may not be possible. In that case, things will get very complicated in a hurry as a result of this guideline.
  3. OSHA has said that it will follow CDC with respect to what is a safe workplace. So, if the IHE is not mandating proof of vaccination for its students, that does raise an issue of whether the IHE is providing a safe workplace for its faculty and staff if the CDC guidelines for mixed campuses are also not being followed.
  4. The IHE may want to consider mandating proof of vaccination for its workers. That is not at all the same at the IHE performing the vaccination itself. If the IHE performs the vaccination itself, there are GINA and ADA concerns that need to be taken into account as we discussed here. As discussed earlier, an employer is perfectly within its rights to mandate the Covid-19 t vaccine for its workers.
  5. Carrying on sports safely consistent with the CDC guidelines is going to be very difficult on mixed campuses, which will be the case in many regions of the country. Some of those regions are very sports driven but may also have laws or executive orders prohibiting proof of vaccination making the situation even more difficult.
  6. The college experience, particularly the residential one, is much more likely to be somewhat normal if the campus is fully vaccinated than if the campus is not. Considering many schools derive a great deal of revenue from tuition, having a campus that is fully vaccinated will make it much more likely that people will be willing to pay the tuition for their college experience.
  7. The CDC guidance says that it is perfectly okay to segregate out people who are fully vaccinated and people who are not fully vaccinated with respect to where they live. On a scientific level, I get that. On a political level, that is likely to be very controversial.
  8. Look for people who are deaf or hard of hearing and who are fully vaccinated to ask for a person with a mask who they know is fully vaccinated to pull their masks down in order for them to lip read, assuming they are a lip reader. This is a reasonable accommodation request that I am making myself in certain situations. It would get complicated if such an individual made a request in a classroom containing both people who are fully vaccinated and people who are not. The IHE needs to have a plan in place for those situations.
  9. Offhand, I can’t think of how mask wearing would violate federal workplace safety guidelines and regulations. If such a situation does arise, definitely consult knowledgeable legal counsel.
  10. People love their single dorm rooms and this guidance might create an incentive for students to not get vaccinated. Admittedly, the CDC doesn’t say that the college must give people who are not vaccinated single rooms. However, it does say that colleges and universities should consider it.

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? (12/16/20, updated 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)99188196202203203; 29 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.