EEOC Updates Technical Assistance Guidance on COVID Returning to Work with Proof of Vaccination and Reasonable Accommodations.

 

This morning, the EEOC finally updated its Technical Assistance Guidance for the first time since December to address the new CDC guidelines about masking and vaccinations.  Happily, it is consistent with the prior guidance from December.  It also provides examples of how to reasonably accommodate those unvaccinated employees under the ADA and Title VII.  Employers may require proof of vaccination, should be prepared to reasonably accommodate employees who cannot get vaccinated (by permitting them, for instance, to wear masks, social distance, telework, relocate work space, etc.) and can provide incentives to employees who get vaccinated as long as the employer remembers that an employee’s vaccination status remains confidential under the ADA.   In short, the EEOC’s press release explained the following key points:

·        Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.  Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers.  From an EEO perspective, 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.

·        Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.

·        Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not 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.

·        Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

 

The updated Q&As on the vaccine and return to work protocols are as follows:

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 below.  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.

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.

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. 21.  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.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.

·        CDC’s website offers a link to a listing of local health departments, which can provide more information about local vaccination efforts.

·        In addition, the CDC offers background information for employers about workplace vaccination programs. 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 Toolkit.  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.

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.

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).  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.12 recommending the same best practice for religious accommodations.)

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 disability 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 Job Accommodation Network (JAN) website as a resource for different types of accommodations.  JAN’s materials about COVID-19 are available at https://askjan.org/topics/COVID-19.cfm.  Employers also may consult applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources.  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 recommendations 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 accommodation or to retaliate against an employee for requesting an accommodation.

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 agent 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.5.)  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.

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 – 17.)  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. 

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.

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.   

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.

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., 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

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 VII. 

 

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.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 Checklist (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.

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. 

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.

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.

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. 

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.14 for more about GINA and pre-vaccination medical screening questions.

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. 

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 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.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

 

DOL Releases More Details About ARPA Coverage

On March 11, 2021, President Biden signed the American Rescue Plan Act  (ARPA) which requires most employers to temporarily pay for health insurance continuation coverage (commonly referred to as COBRA) during the period between April 1 and the earlier of September 30, 2021, when the individual becomes eligible for Medicare or other group health insurance (through, for instance, a spouse or new employer) or when the individual’s 18 or 12-month continuation period expires).  This ARPA coverage applies to employees (and their qualified family members) whose hours were reduced, were laid off or were involuntarily terminated (for other than gross misconduct) anytime after October 2019, but who are still within the 18 month COBRA continuation period (or similar 12 month continuation period under Ohio’s mini-COBRA statute).    ARPA applies to for-profit, governmental, non-profit, large and small employers (who might not even be otherwise subject to COBRA), who will receive a credit against their Medicare payroll taxes for the amount of ARPA coverage provided in 2021.   On April 7, 2021, the DOL released FAQs and model notices for employers to provide to potentially eligible employees, including:  a Notice for Assistance Eligible Individuals (AEIs) who experience a qualifying event  between April 1 and September 30, 2021; a Notice for AEIs  who experienced a qualifying event prior to April 1, 2021 and are either currently enrolled, never enrolled or discontinued COBRA coverage; a Notice to be used by plans subject to Ohio's Mini-COBRA statute; a Notice of Expiration Period; and a summary of the ARPA premium assistance and Request for Treatment as an AEI form.  

Employers (and their COBRA administrators) should identify those former employees who are still within their 18 month COBRA (or, if applicable 12 month mini-COBRA) continuation period and send them the required notices before the end of May.  Even if the former employees never elected COBRA or dropped such coverage, they are entitled to elect within 60 days the new free (to them) ARPA coverage retroactive to April 1, 2021 if they have not become eligible for Medicare or another group medical plan.  Employees are not required to elect the new ARPA coverage (and may not want to do so if they already purchased an individual health plan which will not permit them to drop or to re-enroll once the ARPA coverage lapses, the individual plan has better benefits or deductible, they have already reached their deductible and do not want to start over with a new plan, or are concerned about losing tax subsidies, etc.).   Employees terminated after April 1 can receive the model notice with their regular COBRA notice (or it can be sent separately).

The DOL has provided a model “alternative” notice to former employees of small employers who are eligible for the ARPA coverage, but only under Ohio’s mini-COBRA statute.   This form requires a remarkable amount of editing by employers and/or their health plans.  Notably, ARPA does not change the election deadlines for Ohio’s mini-COBRA statute and it does not appear as though employees only covered under Ohio law may be entitled to ARPA coverage if they did not first timely elect and maintain continuation coverage under Ohio law.

Q6: Does the ARP change any State program requirements or time periods for election of continuation coverage?

No. The ARP does not change any requirement of a State continuation coverage program. The ARP only allows Assistance Eligible Individuals who elect continuation coverage under State insurance law to receive premium assistance from April 1, 2021 through September 30, 2021. It also allows Assistance Eligible Individuals to switch to other coverage offered to similarly situated active employees if the plan allows it, provided that the new coverage is no more expensive than the prior coverage. See Q15 and Q17 for more information.

Employers are also required to notify former employees between 15 and 45 days before their ARPA coverage is about to expire and the DOL has provided a Notice of Expiration of Period for such purpose.  

The statute and FAQs do not address a host of outstanding issues and ambiguities and the IRS has not yet issued any guidance about the available tax credits or refunds.  

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court Rejects Retaliation Claims Where Employee Violated Same Safety Rule for Which He Had Just Been Suspended

 

Last month, the Ohio Court of Appeals affirmed an employer’s summary judgment on a retaliation claim brought by a former employee who had been fired after violating safety protocols and his final written warning on the same subject just a few weeks earlier.   Creveling v. Lakepark Industries, Inc., 2021-Ohio-764.   The Court rejected the employee’s claims that his termination was retaliatory for obtaining workers’ compensation or participating in an OSHA investigation or because of his alleged or perceived disability.   The Court refused to apply the worker’s compensation retaliation statute to a claim brought after the employee returned to work because simply returning to work from workers compensation leave does not constitute protected activity.  Further, the Court refused to find that the employee was disabled.  The Court held that participating in an OSHA investigation was not protected by the relevant statute, which only prohibited retaliation for filing an OSHA claim or testifying in an OSHA proceeding.  More importantly, the Court found that the employee could not prove causation or pretext for his termination when he had been injured while violating a safety protocol, had received workers compensation and medical leave, had been suspended for his initial violation of the safety protocol upon returning to work, had been warned in writing that he would be fired if he violated that safety protocol again, and on his first day back performing his former job, he again violated the safety protocol by wearing Kevlar gloves while operating rotating equipment.

According to the Court’s opinion, the employee was a tool and die operator.  The Employer’s policies and training made clear that employees were not to wear Kevlar gloves while operating rotating equipment.  The employee testified that he and other employees frequently ignored that rule.  In September, his right hand was mangled (requiring the amputation of a finger) in rotating equipment while he was wearing Kevlar gloves in violation of the Employer’s policy.  The Employer filed a workers compensation claim on his behalf the same day and reported the injury to OSHA.  During the OSHA investigation, the Employer provided the employee’s contact information, but was unaware that he had been interviewed.  The Employer resolved the OSHA investigation by installing new safety equipment on the machine.  The employee returned to work in April and was immediately suspended for his September violation of the safety protocols.  He signed the suspension notice stating that he would be fired if he again violated the rule against wearing gloves while operating the safety equipment.  When he returned to work on May 1, he requested to return to his old job instead of light duty.  Upon producing a medical release, he was released to return to his former job on May 8.  That same day, he was observed operating rotating equipment while wearing Kevlar gloves.  He was immediately suspended and ultimately terminated for again violating the Employer’s safety rule and violating the terms of his disciplinary suspension.

The plaintiff filed suit alleging that his termination violated Ohio’s statute prohibiting retaliation against employees for filing workers’ compensation claims, the Ohio Civil Rights Act prohibiting discrimination against employees with disabilities or perceived disabilities, Ohio’s public policy prohibiting retaliation against employees who participate in OSHA investigation, and Ohio’s intentional tort statute.  The trial court granted the employer summary judgment on all claims and the Court of Appeals affirmed.

Claims for workers’ compensation retaliation are governed by R.C. 4123.90, which pertinently provides:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.

The Court found that the employee could not establish “a causal link exists between the employee’s filing or pursuit of a workers’ compensation claim and the adverse action by the employer” or that the reasons for his termination were pretext for workers’ compensation retaliation.

“The inference of retaliatory motive may be drawn from the surrounding circumstances, including the timing of the discharge relative to the protected conduct, whether punitive action was directed toward the employee as a result of the claim, a hostile attitude[ ] toward the employee once the claim was filed, disparate treatment of the employee relative to others, and requests not to pursue a claim.”  . . .

{¶ 27} Appellant argues that the fact that appellant was terminated within seven days after he returned to work, following his three-day suspension beginning on April 24, 2017, established temporal proximity between [the Employer’s] knowledge of appellant’s protected activity and appellant’s termination sufficient to constitute evidence of a causal connection.

The Court rejected any argument about temporal proximity because the employer had known about the employee’s workers’ compensation claim for more than eight months before he was fired.

Such does not constitute “very close” proximity between the protected activity and the adverse employment sufficient to establish causation. Further, appellant was unable to cite, and research by this court was unable to show, any authority to support appellant’s position that simply returning to work from workers’ compensation disability constitutes protected activity under R.C. 4123.90. Nor is there any authority to support that an employer’s “knowledge” of a claim is sufficient to give rise to a retaliatory discharge claim.

The Court refused to find causation from stray and light hearted comments about his injury or from employees violating the safety protocols prior to his accident without getting fired.  It also rejected his argument that he had not yet started to operate the rotating machine at the time he was confronted because he had already placed the blocks onto the machine and turned it on in order to grind a weld off.   More importantly, the employee could not show that the reason for terminating him was pretextual because he voluntarily signed and did not contest the basis for his suspension and final warning.  He knew that violating that wearing Kevlar gloves again while operating a rotating machine could and would lead to his termination.  The argument that he had not yet started to push the blocks through the machine at the time he was confronted would not save his job:

The evidence is clear that [the Employer] had a reasonable basis to infer that appellant was operating the profiler while wearing gloves in contravention of the Employee Corrective Action, based on the eyewitness observations of Zagurskie and Kreinbrink. Accordingly, it is the determination of this court that appellant has failed to establish that Lakepark’s proffered reason for firing appellant: (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge

The Court also rejected his disability discrimination claims.  Although the plaintiff claimed to have some difficulty with basic life activities (like holding a pencil, buttoning a shirt, household chores etc.) and had not yet acclimated to his job duties, he believed that he was making progress and would be able to perform his job with or without a reasonable accommodation. 

As far as appellant’s work is concerned, appellant testified, “I believe I could do anything. I’m trying to do everything. It’s just a matter of maybe having to do things in a different procedure or a different way or have some assistance lifting a heavier block or whatever. But as far as being able to do my job, I could pretty much do it.”

Indeed, he was not returned to his old job until he produced a medical statement indicating that he could perform his essential job functions.   The court recognized that his impairment affected a major life activity, but still held that he could not show that he was disabled because “there is no evidence to suggest whether appellant’s impairments, as described, substantially limit his ability to perform the aforementioned (or any other) major life tasks as compared to most people in the general population.”  The Court indicated that it was following  the more lenient federal post-ADAA law.

The Court recognized that a perceived disability claim could exist without the employer believing that the impairment substantially limited a major life activity.  However, “courts have held that mere awareness of a condition, even with work restrictions, does not establish that an employer regarded an employee as disabled.”  Further, the Court observed that the employer had permitted the employee to return to his old job without any medical restrictions.   The Court also refuse to consider a few  lighthearted comments made about his injury to constitute evidence of an unlawful perception of a disability.

The Court rejected the public policy claim on the basis that the relevant OSHA statute only protected employees who filed claims or who testified in OSHA proceedings.

Section 660(c), Title 29, U.S. Code, in its entirety, provides as follows:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

 In this case, the employee did neither.  The employer notified OSHA about the accident and the injury and the employee merely participated in the OSHA investigation.  The Court found that mere participation in an OSHA investigation was insufficient to constitute protected conduct or the clarity element of a public policy claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Expands Self-Certification Pandemic Unemployment Assistance Eligibility for Employees Avoiding Unsafe Workplaces

 

Last week, the federal Department of Labor issued written guidance to state unemployment offices expanding eligibility of employees and independent contractors to self-certify and qualify for Pandemic Unemployment Assistance (PUA) and requiring the states to notify each individual whose prior PUA claim had previously been rejected of the new criteria (unless that individual filed a fraudulent claim based on identity theft). Of importance to employers is that employees will be able to apply for benefits for refusing to report for work based on the current or prospective employer’s failure to comply with COVID safety standards and these benefits will be retroactive to either December 6 or to when they filed an earlier claim for PUA prior to December 27, 2020.  The employees are able to self-certify their eligibility.   The DOL also expanded the eligibility of employees who were otherwise disqualified from PUA due to, among other things, insufficient qualifying wages, prior disqualifications or exhaustion of benefits when “their hours have been reduced or the individual was laid off as a direct result of the COVID-19 public health emergency.” The new guidance does not change the requirements that such employees not be able to telework with pay.   The DOL expects that states will need until the end of this month to modify their application systems.  As stated by the DOL:

Individuals who refuse to return to work that is unsafe or accept an offer of new work that is unsafe. The Department approves the following COVID-19 related reason for an individual to self-certify for PUA eligibility: “The individual has been denied continued unemployment benefits because the individual refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes, but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.”

                 . . . .

An individual is generally denied unemployment benefits if the state determines that the work is suitable and the individual did not have good cause for refusing such work. This new COVID-19 related reason applies only to individuals who had already been receiving unemployment benefits but were determined to be ineligible or disqualified under state law because they refused an offer of work at a worksite that was not in compliance with local, state, or national health and safety standards directly related to COVID-19. This is a separate COVID-19 related reason from item (ii) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act, which provides eligibility to an individual who quits their job as a direct result of COVID-19.

For example, an individual may self-certify under this new COVID-19 related reason who has previously been denied because the state law does not consider health and safety standards when assessing suitability or good cause, or who has previously been denied because the health and safety standards considered under state law are more restrictive than the local, state, or national COVID-19 health standards. Below are a few non-exhaustive scenarios. See Section 4.b.iv. of this UIPL for additional details regarding PUA effective dates.

o An individual was laid off in June 2020 and began receiving regular UC. The individual was recalled to work in October 2020. However, because the worksite was not in compliance with the local mask mandate, the individual refused to return to work. The individual was disqualified from continued receipt of regular UC under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

o An individual was laid off in October 2020 and began receiving regular UC. The individual received a new job offer in January 2021, however, the new worksite was unsafe due to non-compliance with physical distancing measures under state law. The individual was disqualified from continued receipt of regular UC under state law. The individual is now eligible to apply for PUA under this new COVID-19 related reason.

An individual is not eligible for PUA if they are otherwise eligible for regular UC (or PEUC or EB). Many states have provisions in their state UC law that consider work that unreasonably exposes an individual to health and safety risks to be unsuitable work. The state may determine, if it is consistent with the state’s law, that the work is not suitable. Or, the state may find the work is suitable but determine that the individual had good cause for refusing such work.1 In these circumstances, the individual must continue to receive unemployment benefits, provided they are otherwise eligible. The individual is not eligible for PUA using this new COVID-19 related reason if the individual was determined eligible for continued unemployment benefits for refusal of work under state law. Moreover, an individual who is allowed continued unemployment benefits and subsequently exhausts such benefits is not eligible for PUA using this new COVID-19 related reason.

 . . .

Existing PUA claims. For individuals with a PUA claim filed on or before December 27, 2020, the expanded COVID-19 related reasons provided in Section 4.a. of this UIPL are to be applied retroactively based on the effective date of an individual’s existing PUA claim. However, if the new COVID-19 related reason applied before the effective date of the individual’s existing PUA claim, the claim must be backdated to the date that the new COVID-19 related reason applied. For example, an individual may have filed a new PUA claim before December 27, 2020 with an effective date in April 2020 based on the previous COVID-19 related reasons available. With the addition of the new COVID-19 related reason, the individual actually may have first been eligible in February 2020. Because this existing PUA claim was filed on or before December 27, 2020, the state must backdate the PUA claim from April 2020 to February 2020 – when the individual first met the applicable COVID-19 related reason.

New PUA claims. For individuals filing an initial PUA claim after December 27, 2020, states must determine PUA effective dates for new PUA claims consistent with instructions provided in Section C.15. of Attachment I to UIPL No. 16-20, Change 4. For example, if an individual files a new PUA claim after the publication of this UIPL because of circumstances occurring in July 2020, absent a PUA claim already being on file and consistent with the Continued Assistance Act, the claim effective date may not be any earlier than December 1, 2020 (weeks of unemployment beginning on or after December 6, 2020), and retroactive benefits may not be awarded prior to that date.

Because of the rampant identity theft occurring with the self-certified PUA claims, the DOL recommends and is permitting certain security measures, including:

Cross match of state unemployment claim records with respect to individuals who self-certify that they refused work that is unsafe because of the COVID-19 public health emergency.

If the state identifies any discrepancies through this cross match (e.g., the individual does not have a previous unemployment claim or the individual was disqualified for a reason other than refusing work because of health and safety standards at the worksite), the state must review information already on file and take any action necessary to address the discrepancies.

 If the information on file with the state contradicts the individual’s PUA self certification (e.g., previous adjudication of the issue determined that the worksite was in compliance with health and safety standards or previous adjudication of the issue determined that the individual refused work due to a reason that was not because of unsafe working conditions), then the state has reasonable suspicion of fraud and must open an investigation to conduct fact finding to determine if the individual’s PUA eligibility is valid.

 Because the PUA self-certification may be different from the state’s provisions for suitable work and good cause (e.g., the new COVID-19 related reason accounts for local, state, and national health and safety standards directly related to COVID-19), it is possible for an individual to be denied unemployment benefits under state law for health and safety standards and be eligible for PUA.

 If the state does not identify any discrepancies through this cross match (e.g., the individual has a previous unemployment claim, the individual refused work because the worksite was not in compliance with health and safety standards, the individual was denied continued benefits, and the state record does not contain information which contradicts this self-certification), the state does not have reasonable suspicion of fraud to open an investigation.

 

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Rush to Termination and Sloppy Documentation Cost Employer a Summary Judgment in an ADA Case

 

Earlier this month, the Sixth Circuit reversed a summary judgment granted to an employer in an ADA lawsuit brought by the EEOC.  EEOC v. West Meade Place LLP, No. 19-6469 (6^th Cir. 2-8-21).  The employee suffered from anxiety attacks six months after being hired when new co-workers were rude to her and she requested intermittent FMLA leave.  After informing the plaintiff that she was not eligible for FMLA leave and that any leave would be unpaid, her manager told her that she would be terminated if she was unable to work, but that she could not return to work without a medical release.  The Court found that there were disputed facts and credibility issues as to whether the employee’s termination two days later was based on the manager’s perception that the plaintiff was disabled.  “[T]he ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity.”

According to the Court’s opinion, the Nashville employer requested a voluntary medical history related to her ability to work from the plaintiff three days after she started work (instead of between her conditional job offer and start date).  She reported taking prescription drugs for anxiety.  When her new co-workers became rude to her, she reported their misconduct and called off work or leave early because of panic attacks.  She then sought FMLA leave.  The doctor’s statement indicated that she would need it for a few days a few times each year because of the panic attacks, but her managers reported that she insisted that she was entitled to twelve consecutive weeks with pay.   After being denied paid FMLA leave, the plaintiff sought to return to work immediately, but was told that she would need a medical release.

There are then three different versions of what transpired.  The plaintiff alleged that she told her doctor that she required a medical release or she would be terminated the next day.  The medical office called the employer and indicated that it was told the next day that she needed to be reassessed and then released to return without any medical restrictions or emotional distress.   In particular, the manager could not understand why she could require FMLA one day and then the next was ok to return to work.  The plaintiff was fired later that day for not being able to perform her job duties.

According to the manager, the plaintiff had initially shown her a note indicating that she needed to be off work for 12 weeks.  After FMLA leave was denied and she was told that she required a medical release to return to work, the plaintiff brought such a release the next day (which then disappeared from her personnel file).  When the employer called the physician to confirm, it learned that the doctor had not released the plaintiff to return to work and did not intend to do so.   The doctor also claimed to be operating a pain clinic.   The manager completed paperwork indicating that the plaintiff was terminated for being unable to work (so that she would get unemployment), but claims that she told other managers about the falsification of the medical release.  Nothing about the document falsification was relayed to the EEOC when the plaintiff filed her Charge of Discrimination.

The termination documents indicated that the plaintiff was unable to perform her job duties.  However, they also indicated that the plaintiff had relied on a physician in Indiana where her sister worked (which the plaintiff disputed).   The notes indicated that the physician’s office had refused to release the plaintiff to return to work without a reassessment.  When the manager relayed this to the plaintiff, she claimed to have called her physician’s office and obtained their consent for her to return to work.  She asked her manager to call a particular telephone number and ask for a particular person, who turned out to be the plaintiff’s sister.  (The plaintiff apparently admitted that she brought her sister into the discussion in order to better explain the plaintiff’s FMLA rights.). The manager then called the physician again to re-confirm that he would not release the plaintiff to return without a new evaluation.  After that, the manager lectured the plaintiff about falsifying medical releases.   When no release was provided, the employee was terminated. 

Remarkably, despite the FMLA request and reason for her termination, the employer argued that there was no evidence to show that it knew or perceived the plaintiff as disabled.   In particular, they point to the fact that the plaintiff stated that she wanted to immediately return to work as soon as she was informed that any leave of absence would be unpaid.  The Court had no difficulty finding that there was sufficient evidence to conclude that plaintiff may suffer a disability even if it was transitory.  (The employer apparently never raised the affirmative defense that any impairment was minor and transitory).   Notably, the medical office records reflect that the manager had specifically said that the medical release must state: “no emotional distress can happen.”  Also, it was disputed whether the plaintiff was motivated to return by the unpaid leave or by the undisputed denial of FMLA leave.  Thus, it was factually possible that the employer perceived her as disabled.   

Although—as West Meade argues—Jarvis may not have considered an anxiety disorder to constitute a disability, a “regarded as” claim under the ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity. . . .

Additionally, as documented, Jarvis terminated Kean because Kean was “unable to do her job,” with no evidence that she was inhibited from doing her job by anything but her anxiety disorder. “To be sure . . . [the employer’s] knowledge of [Kean’s] medical issues—alone—is insufficient to carry the day,” . . . . but this perspective supports the EEOC’s argument not only that Jarvis was aware of Kean’s impairment, but also that Jarvis believed it would inhibit Kean from fully performing her job duties. This contradiction in Jarvis’s testimony creates a genuine issue of material fact.

The EEOC argued that the evidence showed that “but for” the employee’s admission of having an anxiety disorder and requesting an accommodation (i.e., a medical leave of absence), the employer would not have terminated her.  The employer relied on the evidence about the falsification of the medical release (i.e., either the missing note or the sneaky request to speak with the plaintiff’s sister). 

The Court indicated that the jury could interpret the conflicting evidence any number of ways and, therefore, only the jury could ultimately resolve whether the employer was motivated by the plaintiff’s anxiety or by the unusual events surrounding the plaintiff’s attempt to obtain a medical release in order to return to work.   

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.