In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...
Tagged: Equal Employment Opportunity Commission (EEOC)
EEOC Updates “COVID-19 Technical Assistance Questions and Answers” with a Focus on Return-to-Work Guidance
The U.S. Equal Employment Opportunity Commission (EEOC) is continuing to offer COVID-19 related guidance to support employers and employees in navigating the workplace during the pandemic. As we discussed in a previous blog post, the EEOC updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance (first published in 2009) to specifically address the COVID-19 pandemic. In addition to the Pandemic Preparedness guidance, the EEOC has issued What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, technical assistance guidance that contains numerous COVID-19 related questions and answers. Similar to the pandemic preparedness guidance, the technical assistance addresses employer’s obligations under the Americans with Disabilities Act (ADA), specifically as they relate to accommodation requests and medical exams due to COVID-19, as well as other COVID-19 related workplace issues. The EEOC has continued to regularly update the technical assistance since its initial publication in March 2020, with the most recent updates in June 2020. The EEOC has explained that EEO laws like the ADA and Rehabilitation Act continue to apply during the COVID-19 pandemic, but do not interfere with or prevent employers from following guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state and local public health authorities concerning preventative...
The U.S. Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (DCR) have joined a growing number of governmental agencies and public health organizations in issuing specific COVID-19 related guidance. The EEOC and DCR guidance each includes a series of frequently asked questions directed at ensuring compliance with federal and state anti-discrimination laws in the treatment of individuals affected by the novel coronavirus, in connection with employment, housing, and places of public accommodation. The DCR guidance, “Civil Rights and COVID-19: Frequently Asked Questions,” reminds employers, housing providers, and places of public accommodation of their obligations under the New Jersey Law Against Discrimination (LAD) and the New Jersey Family Leave Act (NJFLA). Among the topics covered by the DCR, the guidance: Reminds employers that the prohibitions against discrimination and harassment because of an LAD-protected characteristic apply even when the conduct at issue “stems from concerns related to COVID-19.” The DCR explains that firing an employee who is perceived to have a disability related to COVID-19 is unlawful. In addition, behavior such as referring to COVID-19 as the “the Chinese virus” or harassing employees of East Asian heritage by claiming Asian people caused COVID-19 is expressly prohibited, and employers must take steps to immediately stop the behavior. Reminds landlords and building managers that...
The U.S. Supreme Court Declines Review of Seventh Circuit Decision Rejecting Extended Leave as a Reasonable Accomodation for Disabled Employees under the ADA
On April 2, 2018, the United States Supreme Court declined to hear an appeal in Severson v. Heartland Woodcraft, Inc., a decision of the Seventh Circuit Court of Appeals that rejected a disabled employee’s claim that, as an accommodation for his disability, he was entitled under the Americans with Disabilities Act (“the ADA”) to leave beyond the maximum 12 weeks authorized by the Family and Medical Leave Act (“the FMLA”). The Seventh Circuit’s Decision Because of back pain, Raymond Severson took the maximum 12 weeks of leave permitted by the FMLA. On the last day of his leave he underwent back surgery, which required him to remain out of work for another two to three months. His employer rejected his request to extend his leave for an additional three months and terminated his employment, although did invite him to reapply when he was medically cleared to return to work. Instead of reapplying, Severson brought suit under the ADA, alleging that the employer failed to provide a reasonable accommodation for his disability by denying his request for extended leave. The district court granted the employer’s motion for summary judgment, and the Seventh Circuit affirmed. The Seventh Circuit’s analysis of the issue was straightforward. “A ‘reasonable accommodation’ is one that allows the disabled employee to ‘perform the...
According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.
The EEOC Finalizes Wellness Program Guidance, Issuing Final Rules on Workplace Wellness Programs and a Sample Notice
After much anticipation (and confusion) regarding legally permissible parameters for certain employer-sponsored wellness programs, on May 16, 2016, the Equal Employment Opportunity Commission (“EEOC”) issued two final rules concerning wellness programs that offer incentives in exchange for health information from employees and their spouses. Specifically, the rules describe how wellness programs can comply with Title I of the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondisclosure Act (“GINA”). According to the EEOC’s press release, the rules provide guidance under the ADA and GINA consistent with the relevant provisions of the Health Insurance Portability and Accountability Act (“HIPAA”), as amended by the Affordable Care Act (“ACA”). The EEOC’s proposed regulations were discussed in a previous post following our presentation entitled “Wellness Programs for a Healthy Workplace” at the Fifth Annual Gibbons Employment & Labor Law Conference. Then, in June, the EEOC issued a sample notice for employer-sponsored wellness programs. Here, we parse the rules into bright-line takeaways for employers.
At the Fifth Annual Gibbons Employment & Labor Law Conference for clients of the firm, we presented a program entitled “Wellness Programs for a Healthy Workplace.” Cathy Kenworthy, President and CEO of Interactive Health, discussed the business case for implementing wellness programs in our workplaces, while I addressed the numerous laws impacting such programs.
EEOC to Collect Wage and Hour Data Based on Race, Ethnicity, and Gender in Effort to Aid Enforcement of Laws Requiring Pay Equity
The United States Equal Employment Opportunity Commission (“EEOC”) has proposed a change to the EEO-1 Report, the standard form used to collect workforce profiles from certain private industry employers and federal contractors. In its current iteration, the form annually requires employers to categorize their workforces based on gender, race, ethnicity, and job category, using data collected from one pay period occurring in July, August, or September of the reporting year. The amended form would require further categorization of employees based on W-2 earnings and hours worked.
Jury Awards $2.2 Million to Employees Over DNA Tests in Violation of GINA in “Devious Defecator” Case
A federal court jury in Georgia recently awarded $2.22 million to two employees in what is believed to be the first jury verdict in a Genetic Information Nondiscrimination Act (“GINA”) employment case since the law went into effect in 2008. Dubbed the “devious defecator” case by the court, Lowe v. Atlas Logistics Group Retail Services (Atlanta), LLC involved an employer’s testing of two employees’ facial cheek (or “buccal”) swabs to identify whether either was the individual who had been repeatedly defecating on the employer’s premises. All jokes aside, the decision is notable, not only because it is one of the few, if only, jury verdicts awarded under GINA, but because it serves as an important warning to employers that GINA may apply more broadly than some initially believed, while also possibly providing a blueprint for other courts on how to interpret the statute.
Supreme Court Rules an Employer’s Failure to Accommodate a Job Applicant’s Religious Practice Violates Title VII Without Proof the Applicant Requested An Accommodation
In its much anticipated decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the U.S. Supreme Court has held that a prospective employee who was turned down for a job because she wore a headscarf, which the employer suspected was worn for religious reasons, can proceed with her claim of religious discrimination under Title VII of the Civil Rights Act of 1964, although when she applied for the job the applicant never requested permission to wear the headscarf as an accommodation to her religious practices. Employers should be aware that the Court’s decision (1) imposes on an employer an affirmative obligation to reasonably accommodate the religious practices of its employees and prospective employees and (2) exposes an employer to potential liability for intentional discrimination, and thus for compensatory and punitive damages, for failing to make such accommodations.