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.

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