BCLP At Work

BCLP At Work

ADA

Main Content

COVID Vaccination – OSHA Suggests Employers Consider Requiring Vaccination

August 16, 2021

Categories

In the strongest language issued on the subject to date, on August 13, 2021, OSHA revised its COVID guidance for employers (“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”) and “suggest[ed] that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

Since COVID vaccines became widely available, employers have been weighing whether to implement a COVID vaccination requirement for employees (whether to enter the workplace or to remain employed).  While not having the same force and effect as a regulation, published OSHA guidance is a meaningful and important indicator of what the federal safety watchdog considers to be appropriate employer action.  For those employers who were looking for that nudge to convince them to implement a policy requiring vaccination, this revised guidance may just be that nudge.

As we discussed in previous blog posts (Coronavirus (US): Key vaccination issues for employers – Part 1, Part 2, and Part 3) on the subject, when implementing a mandatory vaccination policy, employers must, among other legal

Employee COVID Vaccination Status: You Asked. They Answered. Now What?

As employers make plans to modify pandemic-related work-from-home arrangements and require employees to come into the workplace, many have wrestled with “the vaccination status question.” Should employers ask employees whether they are fully vaccinated against COVID-19, or even require employees to provide proof of vaccination before returning to work (subject to certain accommodation obligations)?

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) COVID-19 Guidance has made clear that, under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to inquire about vaccination status, because the question is not a disability-related inquiry or a medical examination.  In light of this guidance, many employers have opted to ask the vaccination status question, and are doing so in various voluntary or mandatory ways, e.g., through surveys, through required completion of forms or attestations, or even by requesting proof of vaccination (i.e., a copy or photograph of the employee’s CDC-issued vaccination card received at the time of vaccination).

But once the vaccination status question is asked and answered, what can and should an employer do with the vaccination status information? Can it be the basis for employment-related decisions? Are there any restrictions on

Coronavirus (US): Key vaccination issues for employers – Part 3

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

(13) Should employers have a written policy or program? What about training?

Yes and yes

Coronavirus (US): Key vaccination issues for employers – Part 2

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g.

Coronavirus (US): Key vaccination issues for employers – Part 1

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 1 of the three-part article, we address six of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that

US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  1. The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA.  While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing

US COVID-19: 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations

June 23, 2020

Categories

With more and more states reopening their economies, employers are facing a barrage of new requirements from state and local governments.  But compliance with local law isn’t the only thing employers must consider as they resume business operations.  Federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), continue to impact which workers may be required to return to work and what information employers may gather in the process.

Just as the COVID-19 pandemic evolves, so, too does guidance on these topics from the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws.  In its most recent publication, the EEOC offers new insights on antibody testing, older workers, and accommodations.  Below are four key takeaways from the updated guidance for every employer to consider.

  1. Employers may not require employees to undergo antibody testing (i.e. serologic testing used to determine whether an employee was previously infected with COVID-19) prior to returning to the workplace. This is in contrast to diagnostic testing (i.e. viral testing used to determine whether an employee is currently infected with COVID-19), which an employer may require.
  2. Employees are not entitled to an accommodation

US COVID-19: EEO Reminders to Include in Return to Work Communications

As employers prepare their “Return To Work” plans, clear communications to employees about protocols and expectations will be critically important.  Recent updates to the federal Equal Employment Opportunity Commission (EEOC) COVID-19 publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” discuss “reminders” that employers should consider providing to employees on various EEO-related “Return To Work” topics.

Anti-Harassment Reminders

Near the beginning of the COVID-19 outbreak in the U.S., as reports of harassing conduct towards Asian individuals increased, the EEOC was quick to remind employers that they could reduce the chance of harassment by explicitly communicating to the workforce that fear of the pandemic “should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”  (E.1.)

The EEOC reiterated that guidance in its recent updates, noting that workforce reminders should:

  • Note Title VII’s prohibitions on harassment;
  • Remind employees that harassment will not be tolerated;
  • Encourage anyone who experiences or witnesses workplace harassment to report it to management; and
  • Remind employee that harassment can result in disciplinary action up to and including termination.

 

(E.3.)  The EEOC further emphasized that managers in

U.S. COVID-19: Returning High Risk Employees To The Workplace: Best Intentions Could Be Bad News For Employers

Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s

U.S. COVID-19: Mask and Facial Covering Orders—Four Things Employers Need to Know and Do to Comply with New Obligations

Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

  1. Continue to Monitor Public Health Guidance

Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.