Pick a city in any state…
The introduction of COVID-19 vaccines…
As of this past March…
The gulf between people who support the vaccine and those who don’t isn’t a thin line and that concerns health officials…
As more states relax lockdown regulations…
The deleted copy above illustrates the rapidity at which COVID-19 regulations have changed since the beginning of the year. As one headline is written, another change is made and it’s time to start over.
While some things have changes, some things haven’t. For example, the rage over being asked to wear a mask continues. In May, a flight attendant was attacked by a passenger on a Southwest flight. The flight attendant was instructing the passenger about wearing a mask properly and had done so on several occasions. To make a long (and senseless) story short, the passenger pummeled the flight attendant and knocked out two of her teeth.
The year that wasn’t
Before the year that wasn’t – 2020 – ended, the U.S. Equal Opportunity Commission issued new guidance in the form of an updated technical assistance document (“TAD”) entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This updated guidance included a new Section K on COVID vaccinations that contains questions and answers on a range of COVID vaccine issues.
Of course, there are association members that will want to make sure their customers, their employees and their families are able to do what do they safely. But some members surely must be wondering who has the final say on how they operate their businesses during the ongoing pandemic.
WEDA went to the association’s legal counsel, Seigfreid Bingham, for its interpretation of Section K about COVID-19 vaccinations.
Attorneys John Vering and Mark Opara wrote about the key findings from the following EEOC guidance sent to association members.
The key takeaways from the EEOC guidance are as follows:
- Employers can make COVID-19 vaccines mandatory, subject to certain exceptions and accommodations.
- Employers must consider making reasonable accommodations for employees who claim they are unable to take the COVID vaccine because of a disability, pregnancy or a sincere religious belief. If the employee is unable to take the vaccine for one of these reasons, the employer must make an individualized assessment to determine whether allowing the unvaccinated employee in the workplace would pose a direct threat to the health or safety of the individual or others.
If the employer determines that this unvaccinated employee poses a direct threat in that the employee will expose others to the virus at the workplace, the employer cannot exclude the employee from the workplace or take other adverse action unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat. A reasonable accommodation could include remote work or a leave from work or possibly social distancing and wearing a mask. If there is no reasonable accommodation, the employee can be excluded from the workplace.
- Requiring an employee to produce evidence of vaccination does not violate the ADA; however, subsequent employer questions, such as why an employee did not receive the vaccine, could violate the ADA.
- If the employer requires the employee to receive the vaccine from the employer or a third party with whom the employer has a contract, screening questions are subject to ADA requirements so most employers would be well advised to require vaccination from a third party that the employer does not have a contract with.
Additional practical considerations:
- Employers should plan ahead. Although vaccine quantities are likely to be limited until late spring or summer, start considering whether you plan to encourage or require COVID vaccines. If you think you may require COVID vaccines, put policies in place to comply with the ADA and other legal requirements such as procedures and forms for what documentation will be required with a request for reasonable accommodation and how you will evaluate and respond to requests for a reasonable accommodation.
- If you require vaccines, we recommend that you pay employees for time spent getting vaccinated in order to avoid potential wage and hour claims. Also, be aware that you may be liable for a worker’s compensation claim if the employee has a negative reaction to the vaccine unless Congress or an applicable state adopts liability protection for the employer.
- The CDC Guidance provides that “Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
- Unionized employers must generally bargain with the union over vaccination policies.
- Consider the effect on safety, operations, and morale if you encourage or opt to require mandatory vaccinations.
Seigfreid Bingham reminds readers there are no court cases accepting this new EEOC guidance, courts are not necessarily bound by EEOC guidance, EEOC guidance may change with a new administration, and Congress, state governments or other government agencies may weigh in on these issues in the future.
We urge WEDA members, our clients, and friends to review this new guidance and seek legal advice if you have questions about interpreting your obligations or rights under applicable employment laws or if you need assistance in connection with determining whether to require mandatory COVID vaccinations, how to implement a mandatory vaccination policy or the many other legal issues relating to the COVID-19 pandemic.
Editor’s notes: This article is general in nature and does not constitute legal advice. Please note that new guidance is being provided by authorities on a daily basis so please monitor new developments and guidance, including but not limited to Seigfreid Bingham’s COVID-19 Resource Center at http://www.sb-kc.com/covid-19.
Article Written by John Vering and Mark Opara
John Vering
Readers with legal questions should consult the authors John Vering (jvering@sb-kc.com), Mark Opara (mopara@sb-kc.com) or other shareholders in the Seigfreid Bingham’s Employment Law Group, including: Shannon Johnson, Brenda Hamilton, John Neyens, Julie Parisi, Christopher Tillery or associate Charles Heins or your regular contact at Seigfreid Bingham at 816-421-4460.
Mark Opara
Additional information is available in a WEDA Connect podcast with attorney Mark Opara at www.westerneda.com/news/weda-connect.
