ADA – Workforce

June 2, 2021

Hospital employees are about to lose a vaccination lawsuit against their employer in spectacular fashion

Some 117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine.

According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is “illegally requiring its employees to be injected with an experimental vaccine as a condition of employment.” The lawsuit adds that the hospital’s vaccine requirement violates the “Nuremberg Code and the public policy of the state of Texas.”

In a statement, hospital CEO Dr. Marc Boom said, “It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental.”

Dr. Boom is 100 percent correct; the hospital’s policy is legal. Here’s why, and why this lawsuit will fail spectacularly.

1. The EEOC expressly says that mandatory vaccine policies are 100 percent legal (as long as an employer makes allowances to accommodate employees whose underlying disabilities, sincerely held religious beliefs, practices, or observances, or pregnancy prevents them from getting vaccinated). Because I’ve seen zero references that any of the 117 plaintiffs are claiming an ADA or Title VII violation, I conclude that the hospital has met its legal obligations in this regard. (Note, however, that Texas is considering pending legislation that would make “COVID-19 vaccination status” a protected class under its employment discrimination law.)

2. Public policy actually favors as many individuals getting vaccinated as possible. Just ask the Biden White House, the CDC, the EEOC, OSHA, just about any other government agency, and even the State of Texas (although its governor did sign an Executive Order prohibiting government entities from compelling that anyone receives a COVID-19 vaccine administered under an emergency use authorization). Note also that there are efforts underway in states across the country (e.g., Ohio) to prohibit a business from mandating vaccines or permitting individuals to decline a required vaccine based on medical contraindications, natural immunity, or reasons of conscience.

3. The Nuremberg Code is not a thing, at least not in this context. In fact, there’s been a lot of chatting lately about the Nuremberg Code as a justification to refuse vaccine mandates. It’s wrong and it’s offensive. It’s a set of research ethics principles for human experimentation created as a result of the Nuremberg trials at the end of World War II. It was a reaction to the medical atrocities committed by Dr. Josef Mengele and other Nazis during the war, with the intent of protecting people from suffering similar atrocities. To compare Nazi war crimes to a life-saving vaccine that has been tested and vetted is the height of disgusting selfishness.

Bottom line: If you want to mandate that your employees get vaccinated as a condition of employment, you are legally in the clear to do so, subject to reasonable accommodation exceptions under the ADA for disabled employees, and under Title VII for employees’ sincerely held religious beliefs, practices, or observances, and for pregnant employees. Any other gripes, complaints, or objections by employees are just smokescreens that you can legally ignore, at least for now.

June 1, 2021

EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances

Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for getting vaccinated against COVID-19. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.

What did the EEOC say:

An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own.

An employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent as long as the incentive is not so substantial as to be coercive, and as long as the employer does not acquire genetic information while administering the vaccines. The EEOC does not offer any guidance as to what “so substantial as to be coercive” means, but it’s safe to assume that the incentives employers are offering (a day or two of added PTO, payments or gift cards up to a couple hundred dollars) will not meet this standards and are safe. And when states are offering the vaccinated the chance to win a million dollars…

An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from the employer or its agent, as such incentive would necessarily require the disclosure of the family medical history of the employee, which would violate GINA.

An employer may offer vaccinations to an employee’s family members if those vaccines are voluntary, employees are not penalized if their family members are not vaccinated, and all medical information obtained from family members during the pre-vaccine 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.

Employers may (and I’ll add, should) provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.

This guidance is not earth-shattering or surprising. With more than 50 percent of the country having received at least one dose of the COVID-19 vaccine, it provides confirmation and legal comfort to those employers that have already offered such incentives. It also follows an important governmental trend we’ve recently seen across agencies—the adoption of policies intended to incentivize people to get vaccinated. Whether its PTO for vaccines, the CDC’s new mask rules, or OSHA reversing course and eliminating its prior guidance that required the reporting of adverse reactions to employer-mandated vaccines, the federal government is actively breaking down barriers that discourage or disincentivize employees from getting vaccinated.

With only 40.7 percent of the country fully vaccinated, we are a long way from the number needed to reach the all-important herd immunity, if we ever get there. While it feels like life is starting to return to normal, the COVID-19 pandemic is not over yet. Do your part and get your shot. And, if you’re an employer looking to get as many of your employees vaccinated as possible, you can rest easier knowing that the EEOC will not penalize you for offering vaccine incentives to your employees.

May 26, 2021

Vaccination status harassment

“I can’t believe you got vaccinated. It’s an experimental drug that I’m not injecting into my body. Besides, I heard that Bill Gates and the global elites implanted 5G trackers in the vaccine. All the government wants to do is control us, and you’re letting them by submitting to these shots. Sheeple!”

“I can’t believe you’re not getting vaccinated. Don’t you care about protecting yourself and others? This vaccine has been tested, vetted, and is safe and effective. We need to reach herd immunity if we want this pandemic to end, and you’re not doing your part. Selfish!”

Some version of this drama is likely playing out in your workplace. And it has to stop, ASAP.

For starters, one’s choice not to get vaccinated might be because of an underlying physical or mental impairment, a pregnancy (or hope to become pregnant), or a sincerely held religious belief, practice or observance. In any of those cases, harassing a co-worker because of his or her unvaccinated status might cross the line into unlawful protected-class harassment.

Additionally, whether another is or is not vaccinated is really none of anyone’s business. As noted in this post, it’s confidential medical information under the ADA (not HIPAA). It’s an employer’s business whether unvaccinated employees are following the CDC’s guidelines and keeping their masks on while at work.

But whether they’ve gotten the Pfizer, Moderna, or J&J jab? Not a co-worker’s business. And certainly not something anyone should be harassing or bullying anyone else over. Civil discourse is one thing. Harassment, bullying and disrespect is another altogether.

It’s simply not realistic to eliminate all vaccine-related discourse from the workplace. We’ve lived with COVID for over a year. With a few exceptions it’s all we’ve talked about. How can we expect employees simply to ignore conversing about issues such as vaccines for the eight-plus hours a day they are at work?

Instead of banning these discussions, remind employees of your expectations regarding all workplace conversations — that they are civil, professional, respectful and do not intrude on protected classes. And, if an employee violates these precepts, an employer should (or, in the category of protected-class harassment, must), address the issue.

Discussions over divisive issues need not be nasty, uncivil or contemptuous as long as we respect the rights of others to think differently and hold them accountable when they fall short of this standard.

May 25, 2021May 25, 2021

How to enforce mask rules at work without breaching ADA confidentiality rules

If an employer is supposed to keep an employee’s vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC’s most recent guidance that permits fully vaccinated individuals to unmask?

The EEOC makes it clear that an employer encounters zero legal impediments from “asking or requiring an employee to show proof of receipt of a COVID-19.” But once you obtain that information from an employee, you still must maintain it as a confidential medical record under the ADA.

The ADA requires employers to keep confidential any medical information they learn about any employee and store it confidentially and separately from an employee’s personnel information. An employer may only disclose this information to other personnel on a “need to know” basis.

So, if you intend to follow the CDC guidelines, you need a process to know which employees are vaccinated and which are not, which would involve the disclosure of vaccination status. Then, you need to communicate that information on a limited basis to those managers or supervisors who need to know that information to enforce your mask rule for the unvaccinated.

As long as you limit the disclosure to the narrowest group who reasonably and in good faith legitimately need to know which employees are, and are not, vaccinated, in this employment lawyer’s opinion such disclosure should pass muster under the ADA’s confidentiality rules. (As with all things, check with your own employment counsel before rolling out such a policy.)

Jon, you ask, won’t everyone know who is and is not vaccinated just by looking at who’s marked versus maskless? No really, as some fully vaccinated employees may choose to keep wearing a mask. Moreover, even if only unvaccinated employees wore masks, that would be a function of you following CDC guidelines, not the result of a breach of confidentiality.

Tomorrow, vaccine-status harassment.

May 12, 2021

We are in the midst of a public mental health crisis; how employers can help

employers mental health; Millennials and mental health

Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

31 percent of people report symptoms of anxiety or depression.
13 percent report having started or increased substance use.
26 percent report stress-related symptoms.
11 percent report having serious thoughts of suicide in the past 30 days.

These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.

Here are four suggestions.

1. Check the benefits available to your employees. Do you have an employee assistance plan and are its mental health and counseling services are up to date? Are your health insurance plan’s mental health benefits easy to access and affordable? Do your employees know about state-offered resources, such as Ohio’s CareLine, a 24/7 community administered emotional support call service (800-720-9616)?

2. Revisit paid time off policies and consider providing employees the time they need to take care of themselves and their families. And understand that everyone’s situation at home is different. Some only have themselves to worry about, while others have families, older parents, etc. None of this is ideal, but for some, it’s less ideal than for others, depending on how much non-work responsibilities are on one’s plate.

3. Consider holding town halls or all-employee meetings that focus on mental health awareness. If senior leadership encourages education and communication around mental health issues, your employees will be more likely to access care if and when they need it. Leadership always starts from the top, and it’s vital that leadership leads on this issue.

4. Small gestures of kindness can go a long way. An extra day paid day off, a gift certificate for takeout meals or grocery deliveries or a surprise delivery of a mid-day snack can help employees feel appreciated and connected instead of overwhelmed and stressed.

Also, do not forget about or ignore your ADA obligations. The statute covers mental impairments no differently than physical impairments. If an employee is suffering from a mental illness you have an affirmative obligation to reasonably accommodate that employee, which might involve, for example, unpaid time off for the employee to obtain needed treatment.

Finally, do not ignore these issues or your employees who are living with them. Mental health illnesses are no different than other illnesses from which we suffer.

Treating them differently only increases the stigma that surrounds them and pushes individuals deeper into their illnesses and further away from the treatment they need.

March 31, 2021

COVID-19 vaccination cards will be required to do lots of things — possibly even working

According to the Wall Street Journal, COVID-19 vaccination cards are our only proof of vaccination status and will soon be as essential as a drivers’ license or passport. With no national or statewide centralized databases of vaccination records, the piece of paper you receive with your vaccine dose is your only proof of vaccination.

The article suggests that we’ll need this record to do lots of things moving forward, such as travel. What about returning to in-person work? Can employers ask for or require that employees provide proof of vaccination?

According to the EEOC, the answer is yes as to the ask.

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

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.

The question then becomes what does an employer do if an employee cannot provide proof of vaccination? If the vaccine is mandatory and a condition of employment, it can deny access to the workplace or even terminate, provided that it is considering exceptions for employees’ disabilities and sincerely held religious beliefs, practices and observances. If the vaccine is not mandatory, why ask for the vaccine record in the first place?

We are entering a very interesting era of privacy, including employee privacy. If you are not mandating the vaccine, while you are within your legal right to ask about vaccination status, why would you? Do you really want to catalogue your employees’ vaccination status and for what purpose?

March 17, 2021

CDC allows large employers to establish vaccination sites

The CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.

The CDC on March 16 said that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.

Employers should consider pushing employees to off-site vaccination clinics if they have a smaller number of employees, employees with flexible or non-predictable schedules, mobile employees who don’t have one worksite, or employees who’d prefer not to have their employer administer their vaccine.

Employers who choose to set up a vaccination site still must follow the EEOC’s guidelines on managing vaccines under the ADA, Title VII, and GINA (which I summarized here).

Bravo to the CDC for implementing policies to encourage as many employees to get shots in their arms as quickly as possible. It’s the only way we are going to stay ahead of the more contagious (and perhaps more deadly) variants and beat this pandemic. To this end, I highly recommend that you check out the CDC’s COVID-19 Vaccine Communication Toolkit for Essential Workers, in addition to these 5 tips on building vaccine confidence in your workplace:

Encourage your leaders to be vaccine champions. These leaders should reflect the diversity of the workforce. Invite them to share with staff their personal reasons for getting vaccinated and remind staff why it’s important to be vaccinated.

Communicate transparently to all workers about vaccination. See Key Things to Know, Frequently Asked Questions, and Myths and Facts for up-to-date information.

Create a communication plan. Share key messages with staff through breakroom posters, emails, and other channels. Emphasize the benefits of protecting themselves, their families, co-workers, and community. This fact sheet is available in numerous languages.

Provide regular updates on topics like the benefits, safety, side effects, and effectiveness of vaccination; clearly communicate what is not known.

Make visible the decision to get vaccinated and celebrate it! Provide stickers for workers to wear after vaccination and encourage them to post selfies on social media.

Now please do your family, friends, coworkers, me, and society in general a huge favor and get vaccinated as soon as your state allows you to do so. We are all counting on you.

November 9, 2020

COVID-19 and no-fault attendance policies

Can you “point” an employee under a no-fault attendance policy for a coronavirus-related absence? For example, an employee sick with COVID-19 or awaiting test results, quarantined because of an exposure, or at home because a child needs care?

For the uninitiated, no-fault attendance policies operate by having workers accumulate “points” for missing work, arriving late or other attendance-related issues; after the accumulation of a pre-determined number of “points,” employees face discipline or even termination.

During the ongoing COVID-19 pandemic, these policies are not only unnecessarily cruel, but they also might be illegal.

Generally speaking, if a law protects the absence (i.e., the FMLA or the ADA), then it is unlawful under such law to assign a point under an attendance policy for the absence. While there have not been any such cases decided under the FFCRA, one can safely assume the same logic applies. Thus, for employers with less than 500 employees, it would be illegal to assign no-fault points for absences related to:

A federal, state, or local quarantine or isolation order related to COVID-19;
Self-quarantine or isolation related to COVID-19 based on the advice of a health care provider;
The seeking a medical diagnosis for COVID-19 after experiencing symptoms;
The caring for an individual subject to an order described in (1) or isolation/quarantine as described in (2); and
The care for one’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19.

Even if the FFCRA does not protect an employee’s absence an employer must still consider whether some other law, such as the FMLA, ADA, or GINA, offers similar protection.

In other words, pointing employees for COVID-related absences is fraught with risk. It’s also unnecessarily cruel. We are all trying to do our part to halt the spread of this rapidly accelerating virus. This including isolating, quarantining, and taking care of others who are at risk or unable to care for themselves. This pandemic needs compassion and flexibility, not strict adherence to rigid policies.

October 15, 2020

What we’ve got here is a failure to communicate

An employee suffers an injury that prevents her from operating a motor vehicle. With no means of transportation to travel to and from her workplace, the employee calls off work, believing that her absences were excused. They weren’t, and the employer fires her for excessive absences.

She sues, claiming disability discrimination, in part because of the company’s failure to accommodate her inability to drive.

n Hazelett v. Wal-Mart Stores, the 9th Circuit Court of Appeals concluded that the employee’s ADA claim should have survived summary judgment.

[I]t appears that Wal-Mart failed to participate in the interactive process required under the ADA.… Wal-Mart failed to provide Hazelett two requested accommodations: that she be given leave until July 17, 2015, in her FMLA Medical Certification when she would be released to drive, and two, an assignment to an alternative job to which she could commute.

What we’ve got here is a failure to communicate. Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations. An employer cannot even rely on state workers’ comp laws or standards. The interactive process is mandatory, period.

Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of failing to communicate. Talk with your employees. You’d be surprised how many problems you can head off with a simple conversation.

July 14, 2020

Should employers be testing employees for COVID-19?

COVID-19, coronavirus, public health crisis

Fortune magazine asks: “Why some companies are screening employees for COVID-19, while others have opted out?” This is a legitimate question.

Let’s start with the law. Does the law (in this case, the ADA) permit an employer to test employees for COVID-19? Yes, an employer absolutely may administer a COVID-19 test before permitting employees to enter the workplace.

From the EEOC:

[E]mployers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Just because employers can test doesn’t mean they should test. Why shouldn’t an employer test even though the law allows for it?

1/ Because these tests only measure a small slice of time, and therefore are not a reliable indicator of whether an employee is bringing COVID-19 into the workplace. Unless you are going to test every employee every day (see no. 2 below for why this isn’t feasible or practical), a negative test only establishes that an employee does not actively have the COVID-19 virus within their system at the time the test was administered.

2/ Because tests aren’t necessarily reliable. A team from John Hopkins Medicine has concluded that COVID-19 tests have a false negative rate of at least 20% if used too early after infection. If one in five employees who tests negative for COVID-19 is carrying the virus, why test at all?

3/ Because tests are expensive and not available in a large enough quantity. Testing every employee every day will cost an employer a small fortune, while at the same time unnecessarily using testing resources that could be put to better use (i.e., for those who actually have COVID-19 symptoms). It’s for this same reason (among others) that I believe restarting professional sports right now is crazy. Those players are being tested every single day, using up valuable testing resources that are in too short supply as is.

What should an employer do instead of testing? All employers should require employees to self-monitor for COVID-19 symptoms, and upon the presentation of any such symptoms, report to the employer and isolate per CDC guidelines. Thereafter, the employer should contact its local department of health, contact trace, and quarantine those who were in close contact as needed. That’s about the best you can hope to do to help stop this virus from spreading in your workplace. The law allows you to require testing if you want, but why bother?