When is COVID-19 Considered a “Disability” Under the ADA?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the EEOC issued some new guidance that purports to clarify circumstances in which COVID-19 may or may not cause effects sufficient to meet the definition of “actual” or “record of” a disability for various purposes under Title I, as well as section 501 of the Rehabilitation Act. However, finding clarity on anything related to the ADA is a challenge, to say the least.

As an initial matter, the EEOC tells us that COVID-19 is not always considered to be a “disability.” Rather, each case must be examined on its own facts.

The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

  1. “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
  2. “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
  3. “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

How does this apply to COVID-19? Depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

Keep in mind that a person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
  • An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.
  • As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

To further complicate matters, in some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:

  • An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.
  • During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.
  • After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function.

In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example:

  • An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.

The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:

  • An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.
  • An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

It is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired. Additionally, in some instances, an employer may have a defense to an action taken on the basis of the impairment. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.

Of course, an employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

The Takeaway: Most people who become sick with COVID-19 are not going to have a “disability” as defined by the ADA. However, there is a small subset of people, such as the “COVID long-haulers” who may be affected by COVID-19 to such an extent that they have a disability, as defined by the ADA, and therefore, those folks are protected from unlawful discrimination. This should be determined on a case-by-case basis.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

WIMBERLY LAWSON LAW FIRM SELECTED TO BRING NATIONAL LITIGATION OVER VACCINE MANDATE

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On December 7, 2021, U.S. District Judge Stan Baker of the U.S. District Court for the Southern District of Georgia, granted a nationwide injunction staying enforcement of the federal government contractor vaccine mandate. The law firm of Wimberly, Lawson, Steckel, Schneider & Stine, P.C. represented the Associated Builders and Contractors (ABC), a trade group representing employers (including Federal contractors) in the construction trades, that was granted permission to participate in the case as an intervenor. It is likely that ABC’s presence in a case brought by the State of Georgia as well as the states of Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia was the deciding factor in the Court’s decision to issue a nationwide injunction as opposed to an injunction touching only the states that are parties to the action because, as the Court noted, “not only is the geographic scope of ABC’s membership broad, their involvement in federal contracts is as well.”

Major news outlets are reporting that several prominent law firms were reluctant to represent their clients in the multitude of legal challenges to the Biden Administration’s vaccine testing mandates. These reports suggest that these big firms had clients who both supported and opposed the mandates: this raised sensitive client and public relations issues.

But, as they say, in every crisis there is opportunity. One consequence of the big firms’ decision to sit this one out is that Wimberly Lawson was tapped by the Associated Builders and Contractors (ABC), a trade group representing employers (including Federal contractors) in the construction trades, to make the case for their industry. Wimberly Lawson’s attorneys have had the kind of experience handling complex labor and employment law matters that makes the firm uniquely suited to handle these types of multifaceted constitutional issues that affect millions of employers and workers. The Wimberly Lawson team was led by Larry Stine and included Kathleen Jennings, Elizabeth Dorminey and Jim Hughes. In addition, the Firm is currently involved with the petition for review related to the OSHA Emergency Temporary Standard (ETS) in the Sixth Circuit Court of Appeals.

The essential question presented in the challenge to Executive Order 14042, the federal contractor vaccine mandate, was whether the president can use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors. U.S. District Judge Stan Baker of the Southern District of Georgia ruled that it is likely that the president cannot, and he granted a nationwide preliminary injunction of the enforcement of the vaccine mandate for federal government contractors.

Judge Baker spent a full day hearing evidence and arguments from the parties (yours truly was there). What became clear from the witnesses presented by the state—representatives of the University of Georgia, Georgia Tech, and Augusta University, was how much time and money they already had spent working to come into compliance with the federal contractor vaccine mandate, and how much they stood to lose it they were unable to reach full compliance (the three institutions’ federal contracts generated approximately $736,968,899.00 in revenue in fiscal year 2021). ABC presented evidence showing that at least two of its members “intended to bid” on specified upcoming federal construction projects, but, following EO 14042, have concluded that it is not practical for them to do so because they likely will not have sufficient employees to perform the job if they enter into a contract that requires all of the covered employees to be vaccinated.

One of the factors that has made compliance with the federal contractor mandate so difficult is the sheer breadth of the mandate; the mandate covers not only persons who are working on federal government contractors, but also persons with whom they come into contact. That factor, alone, makes it a challenge to identify all workers who are “covered” by the mandate. In addition, subcontractors at all tiers are also covered by the mandate unless the subcontract provides only for services.

Judge Baker rejected the federal government’s argument that the states and ABC lacked standing to bring the lawsuit because the Plaintiffs had not “provide[d] [any] evidence that they are (1) parties to a federal contract that already has the challenged clause; or (2) parties to an existing covered contract that is up for an option, extension, or renewal that must include the clause,” and that they have not “identif[ied] any specific, covered solicitations that they plan to bid on or contracts that they plan to enter into in the immediate future.” Judge Baker found that Plaintiff Board of Regents of the University System of Georgia has standing because it has shown that one of its institutions (Georgia Tech) is a finalist for a contract with NASA and it has been advised that, if it is awarded the contract, the at-issue clause must be included in the contract. ABC also provided evidence—using information gathered from the General Services Administration’s Website for federal contracts—that the federal government frequently and routinely issues solicitations and pre-solicitations for bids on Case 1:21-cv-00163-RSB-BKE Document 94 Filed 12/07/21 Page 14 of 28 15 construction contracts (which ABC’s members would normally bid on and be qualified to perform) that would be covered by EO 14042. Judge Baker also noted that Article III standing would exist based on the ample evidence showing that the State Plaintiffs (including many of their agencies) and members of ABC routinely enter into contracts that would be covered by EO 14042,6 have current contracts that could easily fall under the requirements of EO 14042 (if, for instance, they are renewed, modified, or have options that are exercised), and have shown that they would typically continue to seek out contract opportunities with the federal government that now will be covered by EO 14042.

Judge Baker held that the Plaintiff States and ABC were likely to succeed on the merits because the Procurement Act does not authorize the President to issue a vaccine mandate. While the authority of the President to manage the government procurement process is unquestionably broad, it is not without limitations. To that end, the Court found that Plaintiff States and ABC have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

The Court also distinguished a decision issued by the Eleventh Circuit Court of Appeals just the day before that denied a preliminary injunction in the State of Florida’s challenge to the vaccine mandate for healthcare workers. The Medicare and Medicaid regulatory scheme being challenged in the Florida case is significantly different from the federal contractor process. Moreover, the Court noted, “[f]or both the Medicare and Medicaid programs, Congress charged the Secretary with ensuring that participating facilities protect the health and safety of their patients,” and the at-issue interim rule issued by the Secretary “amend[ed] the infection control regulations for facilities that participate in Medicare or Medicaid . . . [to] require[] that facilities certified to participate in Medicare or Medicaid ensure their staff are fully vaccinated against COVID-19, unless an employee is exempt . . .” In other words, Congress gave the Secretary of HHS explicit authority to protect health and safety; the Procurement Act contains no such authority.

Although we all acknowledge the value of vaccines, the issuance of the federal COVID-19 vaccine mandates appears to be an attempt by the current administration to take a controversial action “for the greater good.” If anything, the wide ranging mandates provided some cover to employers that were seeking to vaccinate a larger proportion of their workforces but were hesitant to mandate vaccination themselves for fear of losing valuable employees. And perhaps that was the actual intent of these measures—to promote more employee vaccinations for as long as the mandates could withstand judicial challenges. However, as the Supreme Court said in Alabama Ass’n of Realtors, “[i]t is indisputable that the public has a strong interest in combating the spread of the COVID–19[;]” however, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. Dept. of Health and Human Servs., 141 S. Ct. 2485 at 2490 (2021).

Update on the COVID ETS: It Has Been Stayed. But for How Long?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As noted in my blog post last week, it was expected that there would be many challenges to the COVID Emergency Temporary Standard (ETS). Those challenges were filed very quickly, and on Saturday, the Fifth Circuit Court of Appeals stayed enforcement of the ETS based on “grave statutory and constitutional issues.”

Multiple lawsuits have been filed in multiple federal Circuits challenging the ETS. The federal rules for multi-circuit litigation provide for the cases to be consolidated and heard by one court that is initially chosen by a lottery. The Court selected to hear the cases can decide whether to keep the stay in place or lift it. [Update–the lottery is scheduled to be held on November 16].

Where does this leave us? With a great deal of uncertainty, at least until we find out which Court will handle this issue. In the meantime, companies subject to the ETS should continue their preparations to comply with its provisions.

And of course, I’ll keep you posted on further developments.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Does Your Company Need to Comply with Vaccine and Safety Protocols Applicable to Federal Contractors?  

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By Kathleen J. Jennings (kjj@wimlaw.com)

On September 9, 2021, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directs executive departments and agencies, including independent establishments subject to the Federal Property and Administrative Services Act, 40 U.S.C. § 102(4)(A), to ensure that covered contracts and contract-like instruments include a clause that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts. This clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.


The term “contract” is quite broad and is defined as an agreement between two or more parties creating obligations that are enforceable at law. Of course, one of the parties has to be the federal government. This includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.


It is important to note that the requirements in the order apply to subcontractors at all tiers, except for subcontracts solely for the provision of products. For example, if the company produces a product and sells it to a broker who sells to the federal government, that company is not covered. The prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products. Therefore, even if your company does not contract directly with the federal government, if you are a subcontractor of a company that contracts with the federal government, these requirements may eventually flow down to your contract.


In addition, there is language in the Task Force Guidance that appears to encourage contracting officers to incorporate the new EO 14042 mandatory vaccination clause in contracts that are not covered by the EO:
“Consistent with applicable law, agencies are strongly encouraged to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the order because the contract is under the Simplified Acquisition Threshold as defined in section 2.101 of the FAR [Federal Acquisition Regulations] or is a contract or subcontract for the manufacturing of products. Agencies are also strongly encouraged to incorporate a clause requiring compliance with this Guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.”


What this means is that all federal contractors and subcontractors need to carefully review their new and updated contracts to see if the clause concerning COVID safety protocols and testing has been included.


Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
  2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
  3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.


Covered contractor employees must be fully vaccinated no later than January 4, 2022. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.


And covered contractors must verify the vaccination status of employees. Covered contractors must require covered contractor employees to show or provide their employer with one of the following documents: a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine. Covered contractors may allow covered contractor employees to show or provide to their employer a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record. Which means that an employee can satisfy this requirement with a picture of his/her vaccination card on his/her smartphone.


Here are some interesting aspects of this rule that contractors need to be aware of:

  • Unlike the expected Emergency Temporary Standard (ETS) that will apply to private employers with more than 100 employees, there is no allowance for employee testing in lieu of vaccination in the government contractor rule.
  • Covered contractor employees who have had a prior COVID-19 infection are nevertheless required to be vaccinated.
  • A covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.
  • Covered contractors must comply with the requirements set forth in the order regardless of whether they are subject to other workplace safety standards. In other words, compliance with an OSHA ETS or state law requirements may not satisfy a contractor’s requirements under this order.

Timing: A phase-in of the requirements for covered contracts is as follows:

• Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made.

• New contracts – the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.

Not surprisingly, eleven states have already filed challenges to this rule. In the meantime, however, if your contract has the COVID requirements clause, you’ll need to comply with it.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard is Here. What You need to Know.

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By Kathleen J. Jennings (kjj@wimlaw.com)

The Biden Administration promised us a COVID-19 vaccine mandate, and today it arrived for private employers of 100 or more employees. [There is also a mandate for federal contractors and another for healthcare workers, but we are not going to talk about those in this post.]

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that purports to minimize the risk of COVID-19 transmission in the workplace. This ETS applies to private employers with 100 or more employees firm- or corporate-wide.

The ETS requires covered employers to do the following:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). Boosters are not currently required.
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

Deadlines:

December 5, 2021: Employers must have their compliance program in place, offer paid time off for vaccinations, and require unvaccinated workers to wear masks.

January 4, 2022: The deadline for workers to be vaccinated or start being tested.

Penalties for non-compliance:

This ETS is enforced by OSHA. Each “serious” violation of the standard could result in a maximum fine of $13,653. The cap for willful or repeat violations is $136,532. However, the Build Back Better Act, if it becomes law, would raise maximum fines for all OSHA rules to $70,000 for serious violations and $700,000 for willful or repeat violations.

Other items of interest:

Note that where an employee chooses to remain unvaccinated, the ETS does not require employers to pay for the costs associated with regular COVID-19 testing or the use of face coverings. In some cases, employers may be required to pay testing and/or face covering costs under other federal or state laws or collective bargaining obligations, and some may choose to do so even without such a mandate, but otherwise employees will be required to bear the costs if they choose to be regularly tested and wear a face covering in lieu of vaccination.

The ETS states that it preempts state and local laws governing COVID vaccinations and precautions.

This is a temporary standard (it will expire in 6 months), and it may be subject to change. Furthermore, we expect many challenges to the standard and OSHA’s authority to issue it. Stay tuned for further developments.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The EEOC Updated Its COVID Vaccination Guidance and Confirmed What We Already Knew About Political Objections to Vaccination

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By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the EEOC updated its Guidance regarding COVID-19, specifically addressing employee religious objections to employer vaccination policies. What we learned is something we pretty much already knew; at least, it is the advice that we have been giving to clients, namely, that a political objection to vaccination is not protected by Title VII.

Title VII prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.

The EEOC reminds us that definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. By contrast, Title VII does not protect social, political, or economic views, or personal preferences. Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

That’s right, political objections to vaccines are not protected by Title VII. We already knew that, but it is nice to hear from the EEOC.

The EEOC also tells us that when making a request for a religious accommodation, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. Then the employer and employer must engage in the “interactive process” to determine if a reasonable accommodation exists.

It is important for employees to understand that a request for a religious exception from a vaccination requirement does not mean that the employee receives an automatic pass. In some cases, the employer may not be able to accommodate an employee’s refusal to take a vaccination without creating an undue hardship to its business. Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

Pro Tip: Any employer that requires its employees to be vaccinated (either because the law requires it or otherwise) should develop a form that employees and applicants can utilize to request a religious or medical exemption to vaccination.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

What Are the Top Ten Cited Violations By OSHA?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Everybody likes a good Top Ten list, and those of us who follow OSHA like to know what types of violations make it to OSHA’s Top Ten list.

So here we go–the following are the Top Ten Most Cited Violations by OSHA in 2021:

1) Fall Protection: 5,295 violations

2) Respiratory Protection: 2,527

3) Ladders: 2,026

4) Scaffolding: 1,948

5) Hazard Communication: 1,947

6) Lockout/Tagout: 1,698

7) Fall Protection – Training Requirements: 1,666

8) Personal Protective and Lifesaving Equipment – Eye and Face Protection: 1,452

9) Powered Industrial Trucks : 1,420

10) Machine Guarding: 1,113

Note that fall protection has held the top spot on the list for eleven straight years. The violation that moved up the charts this year was respiratory protection, possibly driven by COVID related issues. Hazard communication (Hazcom) fell from second to fifth.

Employers need to regularly check their worksites to make sure that workers are protected from fall hazards. OSHA requires that fall protection be provided at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry and eight feet in longshoring operations. In addition, OSHA requires that fall protection be provided when working over dangerous equipment and machinery, regardless of the fall distance.

Furthermore, to prevent employees from being injured from falls, employers must:

  • Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover).
  • Provide a guard rail and toe-board around every elevated open sided platform, floor or runway.
  • Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent workers from falling and getting injured.
  • Other means of fall protection that may be required on certain jobs include safety harness and line, safety nets, stair railings and hand rails.

And make sure that employees are trained in the use of any safety harnesses and actually utilize them. I have visited a site where a worker fell 15 feet onto a concrete floor (and survived). His employer had provided a safety harness, but he never bothered to put it on. A supervisor or manager should conduct regular checks of workers to verify that they are using fall protection when necessary.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Dealing With Religious Objections to a COVID-19 Vaccine Requirement

Photo by Soubhagya Maharana on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

In our discussions of rules mandating COVID-19 vaccines, we’ve mentioned the two possible exemptions to a vaccine requirement: disability and religion. Let’s break down the religious exemption.

Under Title VII of the 1964 Civil Rights Act, a covered employer is required to “reasonably accommodate” an employee’s sincerely held religious beliefs or practices, unless such an accommodation would create an “undue hardship” for its business.

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. As an example: if an employee has always taken a flu shot, but then claims that they have a religious objection to a COVID-19 vaccine, that is objective evidence that the religious objection to the COVID-19 vaccine is not sincere.

If an employee makes an objection to the vaccine based upon a religion that you have never heard of, it is important not to dismiss the employee or his/her stated religion out of hand or make any negative comments about them. In other words–don’t buy yourself a claim of religious discrimination or harassment. On the other hand, don’t be afraid to do some research into any unknown religion.

If an employer determines that a religious objection to the COVID-19 vaccine is sincere, then the employer must determine whether it can reasonably accommodate the unvaccinated employee. Under Title VII, an employer should thoroughly consider all possible reasonable accommodations for religious accommodation for Covid-19 vaccination requirements, including telework and reassignment. Other employee accommodations include: wearing a face mask; working a modified shift; and being periodically tested for Covid-19.

As with reasonable accommodation requests made pursuant to the ADA, requests for religious accommodations must be analyzed on a case by case basis. Document the request as well as the process of reaching a decision on the requested accommodation.

However, an employer can lawfully reject a requested accommodation if it would cause an undue hardship, which is “more than a trivial cost to its operations.” Applying this standard to COVID-19 vaccination requirements, employers have argued that allowing COVID-19 to spread among employees and the public would be an undue hardship, and therefore, there is no reasonable alternative to vaccination of all employees in jobs where they have contact with other employees or the public, and the spread of COVID-19 cannot be otherwise mitigated.

Pro Tip: employers need to develop a process and designate responsible personnel to handle employee requests for religious exemptions from vaccine requirements.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Protected Concerted Activity in the Era of COVID-19: What Employers Need to Know

Photo by Anna Shvets on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

The National Labor Relations Board (NLRB) is one of the federal agencies that many employers do not have on their radar. The NLRB is most closely associated with union organizing efforts and collective bargaining agreements between unions and companies. In 2020, only 10.8 percent of wage and salary workers in the US were members of unions (according to the Bureau of Labor Statistics), so the vast majority of companies may think that the NLRB will not bother with them. And they would be wrong.

The National Labor Relations Act (NLRA), signed into law by President Franklin Roosevelt on July 5, 1935, is the federal statute administered and enforced by the NLRB. Most employees in the private sector are covered by the NLRA. The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. It’s the “other protected concerted activity” that even non-union employers need to be aware of.

Basically, the NLRA gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, they can file a complaint with the NLRB. The NLRB has the power to investigate and take action to make an aggrieved employee whole for any losses due to the employer’s violation of the NLRA (think lost wages and benefits for a terminated employee).

The type of conduct that falls under the definition of “protected concerted activity” is very broad. To be protected conduct, employee conduct must be both “concerted” and for “mutual aid and protection.” But individual conduct or speech can be considered “concerted;” it is well-established that concerted activity includes statements by a lone employee addressing coworkers that seek to initiate, induce, or prepare for group action or, or statements directed to management communicating a truly group complaint.

Bottom line: if employees are talking about anything related to work, it’s probably protected by the NLRA. For example, any workplace rule that prohibits employees from discussing their rates of pay with one another violates the NLRA.

A practical example of what constitutes “protected concerted activity” in the era of COVID-19 was recently addressed by the NLRB in an Advice Memorandum. An employee of a company that sells replacement windows posted a message about COVID-19 precautions on a group work chat maintained by the employer on a third-party messaging application and accessed from personal equipment: “[i]n the last three weeks, our case count has spiked in parallel timing with the last Phase of reopening.” This started a discussion among other employees offering their opinions about the effectiveness of COVID precautions.

The employee was removed from the group chat, then reinstated to the chat with the admonition that he not post anything about COVID-19. The employee eventually refused to report to work on the ground that “the imminent threat to safety caused by the recent spike in area COVID-19 cases, the Employer’s inaction in mitigating the threat, and the inability to discuss these dangers with coworkers prohibited him from performing his job in good faith.” On these facts, the NLRB concluded that the Employer had violated the NLRA by removing the employee from the group chat, making statements that restrained the employee from communicating about his work-related concerns, and constructively discharging the employee. Going forward, the NLRB will issue a complaint against the Employer, and a hearing will be conducted to determine whether the employee is entitled to reinstatement to his job and backpay.

The Takeaway: Many employees have very strong opinions about all things COVID, and they are eager to share them with others. Employers may wish to limit such discussions so that they do not interfere with work. However, when those discussions touch on workplace issues, such as workplace mitigation procedures, workplace vaccination policies, or workplace safety, employers need to tread very lightly or risk an NLRB complaint (or even worse, an OSHA citation for retaliating against an employee who complains about workplace safety issues).

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

It’s Not A Good Idea To Admit To Discrimination in a Text Message

Photo by Ono Kosuki on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

Sometimes, I just have to shake my head when I read about an employment decision gone horribly wrong. And this one is really a head shaker: according to a lawsuit just filed by the EEOC, a manager at a Franklinton, Louisiana, restaurant fired a newly-hired worker after sending her a social media message saying, “I’m not gonna be able to hire you. I didn’t realize that you were expecting a baby.” When the worker reapplied for work several months later, the restaurant wrote “pregnant” on her application and did not rehire her.

Now, this is just the EEOC’s side of the story, so the restaurant may have an entirely different version of the facts. But I find it unlikely that the EEOC is going to fabricate the existence of a social media message wherein the manager admits that he is discriminating on the basis of pregnancy, which is a violation of Title VII of the Civil Rights Act.

Here’s the thing: it is unlawful for an employer to fire an employee simply because she is pregnant. Furthermore, an employer cannot make assumptions about what a pregnant worker can or cannot do.

And please–do not fire (or unhire) employees via social media messages or text messages. Just don’t. It is not professional, and the shorthand often utilized in those media can confuse your message. Any time you put something in writing regarding an important employment decision, such as hiring, firing, promotion, or discipline, expect that it will be shown to an attorney, maybe the EEOC, or ultimately, a jury. How will your message look to someone who doesn’t know you or your business?

Having an attorney review these types of communications in advance will save the company money in the long run. Let’s face it: if the restaurant manager above had let the company’s attorney review his social media message to the pregnant worker before he sent it, I like to think that there is a high probability that the message would have said something completely different, and maybe the EEOC wouldn’t be suing the company. So asking an attorney to review these communications in advance can be money well spent.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.