Dealing With Religious Objections to a COVID-19 Vaccine Requirement

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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

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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.

How To Handle The Employee Who Refuses To Get Vaccinated for COVID-19

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

Yesterday, the Biden administration announced that the Labor Department will issue a regulation requiring companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week. The regulation will be issued by OSHA, most likely in the form of an Emergency Temporary Standard (ETS). When enforcing the ETS, OSHA could fine noncomplying businesses up to $14,000 per violation. We anticipate that OSHA will issue the ETS in the next few weeks. We also anticipate that there will be challenges made to the ETS and the authority of the federal government to mandate vaccines.

This is in addition to the expansion of the emergency regulations requiring vaccinations for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

The bottom line is that over 80 million private sector workers are expected to be covered by a COVID-19 vaccine mandate. And some of those workers are going to refuse to get vaccinated, mandate or not. How does an employer deal with the employee who refuses to be vaccinated?

First, find out if the employee has a legitimate reason to refuse to be vaccinated. Legitimate reasons are generally limited to medical (supported by documentation) or a sincerely held religious belief. “I don’t believe in vaccines” is not enough to qualify as a sincerely held religious belief.

Second, if there is no legitimate reason for the employee to refuse a vaccine, the employer should clearly communicate the consequences of not becoming fully vaccinated by a specific date. Can that consequence be termination? Absolutely. Can you require the employee to pay for weekly COVID testing? Possibly. Or require unvaccinated employees to pay a surcharge on their health insurance? Yes–at least one major employer is already doing it.

As with any workplace rule, an employer needs to be consistent in its enforcement of the vaccine mandate or risk claims of discrimination.

What complicates the situation is the current labor shortage in a number of industries. Many businesses cannot afford to terminate all vaccine refusers because they already do not have enough workers. But will there be enough COVID-19 testing facilities to meet the needs of employers who need to test unvaccinated employees weekly? That remains to be seen.

This is a very fluid situation, and I will continue to provide updates.

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.

OSHA Issues COVID Emergency Temporary Standard–For Healthcare. Is There More to Come?

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

Today, the Department of Labor released the long-awaiting OSHA Emergency Temporary Standard (ETS) for dealing with COVID-19. This ETS applies to all settings where any employee provides healthcare services or healthcare support services.

In the world of OSHA, OSHA is authorized to set emergency temporary standards when it determines that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals. Indeed, some employer groups are considering a challenge to the COVID ETS on the ground, among other things, that COVID-19 no longer poses the type of emergency hazard that warrants an ETS.

The key requirements of the ETS are:

  • COVID-19 plan: Develop and implement a COVID-19 plan (in writing if more than 10 employees) that includes a designated safety coordinator with authority to ensure compliance, a workplace-specific hazard assessment, involvement of non-managerial employees in hazard assessment and plan development/implementation, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
  • Patient screening and management: Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; implement patient management strategies.
  • Standard and Transmission-Based Precautions: Develop and implement policies and procedures to adhere to Standard and Transmission-Based precautions based on CDC guidelines.
  • Personal protective equipment (PPE): Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other PPE for exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Aerosol-generating procedures on a person with suspected or confirmed COVID-19: Limit employees present to only those essential; perform procedures in an airborne infection isolation room, if available; and clean and disinfect surfaces and equipment after the procedure is completed.
  • Physical distancing: Keep people at least 6 feet apart when indoors.
  • Physical barriers: Install cleanable or disposable solid barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Cleaning and disinfection: Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with CDC guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ventilation: Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Health screening and medical management: (1) Screen employees before each workday and shift; (2) Require each employee to promptly notify the employer when the employee is COVID-19 positive, suspected of having COVID-19, or experiencing certain symptoms; (3) Notify certain employees within 24 hours when a person who has been in the workplace is COVID-19 positive; (4) Follow requirements for removing employees from the workplace; (5) Employers with more than 10 employees, provide medical removal protection benefits in accordance with the standard to workers who must isolate or quarantine.
  • Vaccination: Provide reasonable time and paid leave for vaccinations and vaccine side effects.
  • Training: Ensure all employees receive training so they comprehend COVID-19 transmission, tasks and situations in the workplace that could result in infection, and relevant policies and procedures.
  • Anti-Retaliation: Inform employees of their rights to the protections required by the standard and do not discharge or in any manner discriminate against employees for exercising their rights under the ETS or for engaging in actions required by the standard. Requirements must be implemented at no cost to employees.
  • Recordkeeping: Establish a COVID-19 log (if more than 10 employees) of all employee instances of COVID-19 without regard to occupational exposure and follow requirements for making records available to employees/representatives. Report work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

Many employers have been voluntarily taking these types of precautions for a while now. Now, for healthcare employers, these precautions become required by OSHA.

Non-healthcare employers, particularly those businesses where employees work in close proximity to one another for entire work shifts, are now wondering if they will be the next target of an OSHA ETS. If vaccination rates stall and fail to reach the 70% threshold, it is possible. I’ll keep you posted.

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 Costs of Not Taking COVID-19 Seriously

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

By all accounts, the number of COVID-19 infections (and deaths) are on the rise and are likely to increase even more after Thanksgiving. At the same time, there is a great political divide as to how seriously folks take the virus. Politics aside, what are some of the potential costs to your business if you fail to take COVID-19 seriously?

As an initial matter, when I talk about taking COVID-19 seriously, I mean that your business is following CDC guidelines, which provides strategies and recommendations for employers responding to COVID-19, which include disinfecting, hand washing, social distancing and the wearing of masks. Employers should also be familiar with OSHA guidance, which focuses on jobs classified as having low, medium, high, and very high exposure risks, and provides specific recommendations for employers and workers within specific risk categories.

So what are some of the potential business consequences of failing to take COVID-19 seriously?

Worker Absenteeism. If workers are not protected from exposure to the virus, they are more likely to get sick, and if they get sick, they cannot come to work. Worst case scenario–one sick worker infects a number of co-workers because no one is taking precautions in the workplace to avoid the spread of the virus, and now you have a number of employees who cannot come to work. Or an exposed worker then exposes his/her family, and they must stay home to care for a sick child. Or maybe a worker is afraid to come to work because they are immunocompromised or live with someone who is immunocompromised. How will you run your business if you don’t have enough people coming to work?

OSHA inspection. If any of your employees believes that you are not taking the necessary precautions to protect them from exposure to COVID-19, they can call OSHA and make a complaint against your business. A federal OSHA inspector may show up at your business to conduct an inspection. They will want to see evidence of your compliance with the OSHA laws, regulations, and guidance. Oh, and during the inspection, if they see something that is unsafe, even though completely unrelated to the initial complaint, they can cite you for it. If you can’t show compliance, you may receive a citation and fine. [And remember: you cannot, and should not, retaliate against any employee for making a complaint to OSHA.]

Employee turnover. Once the pandemic is over, your employees are going to remember how they were treated during the pandemic. Did you listen to their concerns? Or were you dismissive of them? When the economy stabilizes and the job market opens up, the employees who felt like the company did not care about their safety are going to look around for other opportunities. And what do you think those departing employees going to say about your business on job hunting sites?

Union organizing. Less likely, but still within the realm of possibilities. When employees feel like management is not listening to them, or does not care about their safety, they may reach out to a third party, such as a union, to act on their behalf. Do you really want union organizers sniffing around your employees?

Lawsuits. The least of your concerns, actually. While it is extremely difficult to pinpoint where a person was exposed to COVID-19, that is not going to stop enterprising lawyers from filing lawsuits against businesses to see if they can scare up a quick settlement Some states, such as Georgia, have enacted statutes that provide immunity from liability for COVID-19 exposure, which makes it even less likely that a lawsuit will be successful.

Adverse publicity. If your business is open to the public, you can count on members of the public to post something on social media about your compliance (or lack thereof) with COVID precautions or local orders. With photos. Do you want to be that business?

Look, we are all tired of COVID-19. Heck, I’m tired of writing about it. But until there is a reliable vaccine, it’s not going away, so we all need to do what we can to minimize the spread.

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.

©2020 Kathleen J. 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.

Can You Require Your Employees to Be Vaccinated for COVID-19? Should You?

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By Kathleen Jennings (kjj@wimlaw.com)

An FDA approved vaccine for COVID-19 has arrived, so employers may be wondering whether they can require employees to be vaccinated. The answer is generally yes, but should an employer make vaccines mandatory? Here are some important considerations and exemptions.

Considerations:

  • Vaccines are medical examinations under the ADA and, if they are to be required, must be job-related and consistent with business necessity or justified by a direct threat. It is a non-brainer that healthcare employers should make vaccines mandatory due to the potential exposure of employees to COVID-19. For other businesses, they will need to balance the possibility of exposure, consequences of exposure (how many employee absences at one time can the business tolerate?), and utility of the vaccine. Will a full complement of vaccinated employees allow you to resume business as usual?
  • Know your employees. How will they react to a mandatory vaccine rule? Will they comply? Are they likely to have a political objection to a mandatory vaccine rule? Will they rebel? Will they seek out a union organizer to help them rebel?
  • If vaccines are mandatory, will your workers’ compensation policy cover the side effects of a vaccine if an employee experiences a reaction? Check with your carrier. This will vary state to state.
  • What will OSHA require? Keep an eye on OSHA. If OSHA requires mandatory vaccines as part of an employer’s general duty to provide a safe workplace, then employers don’t have much choice; they’ll need to have a mandatory vaccine rule.
  • What will company leadership do? If the company’s leaders roll up their sleeves and get vaccinated as soon as possible, this will send a message to other employees.
  • Does state law require vaccines?
  • Do you have a collective bargaining agreement? If yes, it must be reviewed before implementing a mandatory vaccine rule. Even if the CBA does not require that the union agree to such a rule, it is generally a good idea to give advance notice to the union before implementing such a rule.

Exemptions:

An employer that implements a rule that requires employees to be vaccinated must build in exemptions for religion and disability.

Religion: An employee may be exempt from taking a required vaccine if vaccination violates a sincerely held religious belief. When deciding whether an employee is seeking an exemption based upon a simple disbelief in vaccination versus a religious objection that is part of a larger belief system, the courts look to the U.S. Supreme Court’s United States v. Seeger decision, which framed the the question to be asked as: “[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” Deep stuff, but it basically boils down to the difference between someone who does not believe in vaccination based on statements of media figures or a general distrust of authority, and a Christian Scientist. The first will not be exempt from a vaccination requirement, while the second will be exempt. Note that courts do not look favorably on seeking documentation from a pastor as to the sincerity of a person’s religious beliefs, so do not ask for it.

If an employee is exempt from a vaccination requirement on the ground of a sincerely held religious belief, the employer may need to look at making reasonable accommodations for that employee. In the case of COVID-19, that could look like social distancing and mask requirements in the proximity of the unvaccinated employee, or the employee may work remotely, if the job can be performed remotely.

Disability: Similarly, there may be employees who may be exempt from a vaccination requirement on the basis of a disability. They may have a serious allergy to a component of a vaccine, or they may suffer from a medical condition that could be worsened by a vaccination.

An employer can ask an employee seeking an exemption from a vaccination requirement on the basis of disability for medical documentation to support the exemption. Of course, all medical information must be maintained as confidential in a file separate from the employee’s personnel file. Similar to the situation of the employee exempted by religion, discussed above, the employer may need to provide a reasonable accommodation to the exempted disabled employee.

Now is the time for employers to prepare a vaccine plan as part of a larger COVID-19 strategy.

  • What approach are you going to use: are you going require vaccines for all employees, some employees, or none at all?
  • If you require vaccination, are you prepared to take action, up to including discharge, against those who refuse to get vaccinated and do not qualify for an exemption?
  • Will you offer incentives to convince employees to voluntarily get vaccinated?
  • How will you identify those who are legally exempted from vaccination?
  • What accommodations can you offer to those who are legally exempted from vaccination?

You’ve heard it a million times, but I’ll say it: the current pandemic is an unprecedented situation. The best course is to seek advice from qualified counsel as you move forward.

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.

©2020 Kathleen J. 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.

Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

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In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.

Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.

The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.  Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

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.

©2020 Kathleen J. 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.

DOL Issues New Guidance: No FFCRA Paid Leave If School Is Open But Parent Chooses Remote Learning

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Yesterday, the Department of Labor issued some new guidance on the paid leave provisions of the Families First Coronavirus Relief Act (FFCRA). The new guidance addresses the availability of paid leave to parents who are choosing to let their children go to school remotely.

By way of background, the FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from the effective date through December 31, 2020.

Generally, the Act provides that employees of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of paybecause the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

According to the updated guidance, if a child’s school is closed due to the pandemic, and the parent must stay home with the child, the parent is eligible for paid leave under the FFCRA. However, if the school is open for in-person learning, but offers remote learning to those parents who choose not to send their children to the school, the parents who choose the remote learning are not eligible for paid leave under the FFCRA:

Q: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)
A: No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her.

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Likewise, if the school is open for in-person learning on alternate days, a parent would be eligible for paid leave on those days that the school is closed.

Therefore, if an employee is requesting FFCRA paid leave to care for a child who is not at school, the employer should inquire as to whether the school is open for in-person learning. It may also be a good idea to check the school district’s website for particulars.

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.

©2020 Kathleen J. 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.

Hey Georgia Businesses: Is Your COVID Warning Sign Compliant?

As I discussed in an earlier blog post, this month, Georgia enacted a COVID immunity law. Georgia businesses will generally be protected from liability over COVID-19 exposure except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. In addition, Georgia businesses that post a warning sign will be entitled to additional protection from liability due to a rebuttable presumption of assumption of the risk by a claimant.

Many businesses are posting the COVID Warning Sign. And what they have discovered is that the sign is very large. The sign must be printed in at least one-inch Arial font placed apart from any other text. One inch Arial font translates to about 72 point font. In other words, this is not a little sign you can print off your computer and tape to a door. It is a big sign that is best done professionally by a sign business.

Some businesses are concerned that the presence of the sign will scare off customers. However, so many businesses appear to be posting these signs that it is likely that folks will stop really noticing them. Because this sign is essentially telling the public “Hey, don’t sue me if you contract the COVID,” it makes sense to go ahead and post one so you can cover your assets.

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.

©2020 Kathleen J. 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.

Maintaining the Confidentiality of Employee Health Information During the Pandemic

Photo by Andrea Piacquadio on Pexels.com

In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  •  An employee’s ability to perform essential job functions will be impaired by a medical condition; or   
  • An employee will pose a direct threat due to a medical condition.

 This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.

Not surprisingly, the EEOC has concluded that based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard, which justifies making inquiries to determine if employees are infected with COVID-19.  Therefore, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

Employers may also receive information from employees regarding certain health conditions that may make them or close family members more vulnerable to complications from COVID-19.

What’s an employer to do with all of this health information? Keep it confidential.

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

It is also a good idea to limit access to confidential employee health information to a few trusted management level employees, such as a Human Resources Manager or Safety Manager, and if your company has one, a company nurse. Remember, if someone doesn’t know about an employee’s health condition, she can’t use that knowledge as a basis to discriminate against the employee.

What happens if employees ask whether a certain employee has tested positive for COVID-19? The correct response is to say that you cannot give out confidential health information. Even if it is a small workplace, and folks may guess that the employee who has been out for 14 days may have COVID-19, do not be tempted to confirm any rumors.

Keep quiet, and keep washing those hands!

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.

©2020 Kathleen J. 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.