ADA

What Employers Need To Know About the Latest Public Health Crisis – The Monkeypox Virus

Eric J. Conn 1 Comment

By Eric J. Conn and Ashley D. Mitchell

After the last couple of years living with COVID-19, we were desperately hoping that we would not have to be talking, thinking or writing about the Monkeypox Virus (“MPV”) as a workplace safety and health issue.  And while Monkeypox does NOT appear to be a COVID-19 redux, we have been getting enough questions from our clients that it now seems unavoidable that we have to dig into this.  Alas, here is our first take on Monkeypox – what is it, what are the symptoms and modes of transmission, how is it similar to and different from COVID-19, and what should employers be thinking about and doing in connection with this latest plague.

The Monkeypox Virus (MPV):

Monkeypox is a zoonotic diseases, which means it is caused by a virus that is passed between animals & people.  MPV was first detected in 1958 in a colony of research monkeys in Central and West Africa, and the first human case of Monkeypox was recorded in 1970.  The virus that causes Monkeypox is in the same family as the virus that causes smallpox, and they involve similar, but less severe symptoms in the case of MPV.

The current Monkeypox outbreak is unique in that prior to 2022, Monkeypox cases were extremely rare in the U.S., and cases in individuals outside of Africa, where the virus commonly occurs, were almost always linked to international travel.  In mid-May of this year, the first cases associated with the current outbreak were identified in the U.S., and it is clearly spreading now among non-travelers.  On July 23rd, the World Health Organization (WHO) declared Monkeypox a Public Health Emergency of International Concern (PHEIC). By late July, the U.S. surpassed 10,000 total cases. Continue reading →

What Does the EEOC’s Updated COVID-19 Testing Guidance Mean for Employers

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By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

  • The level of community transmission
  • The vaccination status of employees
  • The accuracy and speed of processing different types of COVID-19 viral tests
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
  • The ease of transmissibility of the current variant(s)
  • The possible severity of illness from the current variant
  • What types of contact employees may have with others in the workplace or elsewhere that they are required to work
  • The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, Continue reading →

[Panel Webinar] A Chat with EEOC Commissioner Keith Sonderling: Artificial Intelligence in the Workforce in 2022 and Beyond

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​Join Kara Maciel and Jordan Schwartz on Tuesday, June 7th at 2 PM ET for a very special bonus event in Conn Maciel Carey’s 2022 Labor and Employment Webinar Series in the form of a panel webinar program regarding The Impact of Artificial Intelligence on the Workforce in 2022 and Beyond.

Presented by
Conn Maciel Carey LLP with Special Guest
EEOC Commissioner Keith Sonderling

On May 12, 2022, the EEOC issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.

It’s no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have Continue reading →

Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recording]

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On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading →

Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

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By Ashley D. Mitchell

Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) Accommodation,Sign,With,Sky,BackgroundAs outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not Continue reading →

Employment Law Implications of the OSHA ETS: Paying for COVID-19 Testing

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By Conn Maciel Carey’s COVID-19 Taskforce

As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect.  (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.)  A key issue to consider is the cost of testing.

Background

Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”).  Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week.  Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.

Under the ETS, a COVID-19 test must be: Continue reading →

EEOC Updates COVID-19 Vaccination Guidance

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading →

What Employers Need to Know About Mandatory COVID-19 Vaccines

Beeta B. Lashkari 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

With the availability of a safe, effective COVID-19 vaccine edging closer and closer, employers understandably have a number of questions regarding their role in the workplace – whether and when they can require a vaccination, what exceptions are required in a mandatory vaccination program, and whether they should require (as opposed to encourage and facilitate) the COVID-19 vaccine for employees once it becomes available. 

This summer, the World Health Organization reported that nearly 200 potential vaccines were currently being developed in labs across the world, and as of mid-October, disclosed that more than 40 had advanced to clinical stage testing on humans.  Drug manufacturers estimate that a vaccine will be ready and approved for general use by the end of this year, although logistically not ready for widespread distribution until mid-2021.

Indeed, just over the past couple of weeks, Pfizer and Moderna have made promising announcements regarding the results of their clinical trials.  Namely, on Monday, November 9, 2020, Pfizer and BioNTech announced that a vaccine candidate against COVID-19 achieved success in the firm interim analysis from the Phase 3 study.  The vaccine candidate was found to be more than 90% effective in preventing COVID-19 in participants without evidence of prior SARS-CoV-2 infection in the first interim efficacy analysis.  According to the announcement, submission for Emergency Use Authorization (EUA) to the U.S. Food and Drug Administration (FDA) is planned for soon after the required safety milestone is achieved, which is currently expected to occur this week.  Additionally, as reported by the National Institutes of Health (NIH) on November 16, 2020, there have been promising interim results from a clinical trial of a NIH-Moderna COVID-19 vaccine.  An independent data and safety monitoring board (DSMB) reported that the vaccine candidate was safe and well-tolerated and noted a vaccine efficacy rate of 94.5%.

As the reality of a vaccination nears, employers are inquiring whether they can and should mandate the vaccine for their employees.

  1. Can Employers Require Employees to Take the COVID-19 Vaccine?

As a threshold matter, it should be noted that according to a member of the federal advisory panel on immunizations that will be making recommendations to the CDC on who should get the first doses, vaccines authorized under the FDA’s emergency use authority, as these COVID-19 vaccinations will be at the start, cannot be mandated.  Any COVID-19 vaccine brought to market under an EUA instead of the normal non-emergency approval process will, by necessity, lack long term safety data.

In general though, outside the context of EUA vaccine, employers can require vaccination as a term and condition of employment, but such practice is not without limitations, nor is it always recommended.  Although the issue is only now coming to the forefront because of COVID-19, mandatory vaccinations in the workplace are not new, and have been particularly prevalent among healthcare providers for decades.  Some variability exists under federal law and among federal agencies, but for the most part, mandatory vaccination programs are permissible, as long as employers consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 (Title VII) and medical accommodation requests under the Americans with Disabilities Act (ADA). Continue reading →

The Intersection of COVID-19, Americans with Disabilities Act, and Age Discrimination in Employment Act

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By Ashley D. Mitchell

As the U.S. enters month seven of the COVID-19 pandemic, employers continue to grapple with how to keep employees safe without violating the rights of employees protected by the Americans with Disability Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Centers for Disease Control and Prevention (“CDC”) has issued guidance to slow the spread of COVID-19 in the workplace encouraging employers to: (1) actively encourage sick employees to stay home; (2) conduct daily in person health checks such as temperature and symptom screenings; and (3) ensure that workers are able to follow social distancing guidelines as much as practicable and encouraging employees to wear face masks where social distancing is not possible. Employers should remain vigilant against enacting policies meant to keep employees safe but have a disparate impact on employees in a protected class.

The Americans with Disability Act

The Americans with Disability Act (“ADA”) prohibits employers with 15 or more employees from discriminating against job applicants and/or employees with disabilities. If a job applicant or employee has a disability and requests an accommodation, employers must engage in an interactive process and are required to provide a reasonable accommodation to the extent it does not cause the employer undue hardship.

In the context of COVID-19, employers may screen employees entering the workplace for COVID-19 symptoms consistent with CDC guidance. For example, an employer may: (1) ask questions about COVID-19 diagnosis or testing, COVID-19 symptoms, and exposure to anyone with COVID-19 (but employers should be sure the question is broad and does not ask employees about specific family members so as not to run afoul of the Genetic Information Nondiscrimination Act (“GINA”)); (2) take an employee’s temperature; and (3) administer COVID-19 viral tests (but not anti-body tests). If an employee is screened and has symptoms that the CDC has identified as consistent with COVID-19, the employer may – and indeed, should – exclude the employee from the workplace. It is also okay – and again, advisable – for an employer to send an employee home who reports feeling ill during the workday. Continue reading →

How Employers Should Respond to the 2019 Novel Coronavirus Outbreak

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By Conn Maciel Carey’s COVID-19 Task Force

The 2019 Novel Coronavirus (“2019-nCoV” or “coronavirus”) is a respiratory illness that, with its spread to the United States, is raising important issues for employers.  This guide explains the outbreak, the legal implications of it, and how employers should be responding now to employees who might have the virus, are caring for affected family members, or are otherwise concerned about their health in the workplace.

The Coronavirus Outbreak

First detected in Wuhan, Hubei Province, China, 2019-nCoV is a respiratory virus reportedly linked to a large outdoor seafood and animal market, suggesting animal-to-person spread.  However, a growing number of patients reportedly have not had exposure to animal markets, indicating person-to-person spread is occurring.  At this time, it is unclear how easily the virus is spreading between people.  Symptoms of coronavirus include fever, cough, difficulty breathing, runny nose, headache, sore throat, and the general feeling of being unwell.  The incubation period is approximately 14 days, during which time an individual may see no symptoms but may still be contagious. The Centers for Disease Control and Prevention (“CDC”) reports that an ongoing investigation to determine more about this outbreak is underway, that the situation is rapidly evolving, and that more information will be provided as it becomes available.

As of January 30, 2020, there have been approximately 8,100 confirmed cases of 2019-nCoV in many countries, including in the United States.  On January 30, 2020, the International Health Regulations Emergency Committee of the World Health Organization (“WHO”) declared the outbreak a “public health emergency of international concern.”  On January 31, 2020, Health and Human Services Secretary Alex M. Azar II declared a public health emergency for the United States to aid the country’s healthcare community in responding to 2019-nCoV.  Additionally, on the same day, the President of the United States signed a presidential “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.”

Legal Implications for Employers

With the presence of coronavirus in the United States, employers must be vigilant in complying with the various labor and employment laws implicated by the virus.

Continue reading →

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

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On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers.  This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard.  It is important to understand the law in this context, especially due to America’s aging workforce.

The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

​During this webinar, participants will learn: Continue reading →

Announcing Conn Maciel Carey’s 2018 OSHA Webinar Series

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The Trump Administration has taken the reins at OSHA, and the first year of the new OSHA’s enforcement and regulatory (or de-regulatory) agenda is in the books.  We have already seen significant changes in the way OSHA does business and the tools available to the Agency in its toolkit.  Now, as the new Administration finishes filling out the OSHA leadership team with its own appointees, we are sure to see shifting of enforcement priorities, budgets and policies, and an amplified effort to repeal or re-interpret controversial Obama-era OSHA rules and policies.  Accordingly, it is critical to stay abreast of OSHA developments.

Conn Maciel Carey’s complimentary 2018 OSHA Webinar Series, presented by the firm’s national OSHA Practice Group, is designed to give employers insight into changes and developments at OSHA during this period of flux.

To register for an individual webinar, click the link below the program description.  To register for the entire 2018 series, click here to send us an email request, and we will register you.  If you missed any programs from prior years, here is a link to an archive of recordings of those webinars.

OSHA’s 2017 in Review & 2018 Forecast

Tuesday, January 16th
New Cal/OSHA Enforcement Issues

Tuesday, July 10th
Unlock the Mysteries of OSHA’s Lockout/Tagout Standard

Tuesday, February 20th
Future of OSHA’s Policy
of Public Shaming

Tuesday, August 21st
OSHA’s New Leadership Team

Tuesday, March 20th
Walking/Working Surfaces Update

Tuesday, September 18th
OSHA’s New Silica & Beryllium Rules

Tuesday, April 17th
Repeat, Willful & Egregious CiTations

Tuesday, October 16th
OSHA’s New E-Recordkeeping
and Anti-Retaliation Rule

Tuesday, May 5th
 Process Safety Update:
OSHA PSM and EPA RMP

Tuesday, November 13th
Joint- and Multi-Employers,
Contractors and Temps

Tuesday, June 5th
OSHA and the ADA: How Two
Labor Laws Align and Diverge

Tuesday, December 4th
See below for descriptions of the webinars and registration links

Continue reading →

OSHA and Employment in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

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By Jordan B. Schwartz and Eric J. Conn

OSHA has long enforced sanitation and accessibility standards for restrooms for workers – an idea that generally makes sense viewed as a health concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.bathroom

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the controversial transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

OSHA Bathroom Requirements

In terms of bathroom access, there are two OSHA concerns primarily at play (aside from the new transgender issue), which often overlap:

  1. providing employees with prompt access to a bathroom; and
  2. ensuring the workplace bathroom is maintained in a sanitary condition.

Toilets must be provided and accessible to all employees at every fixed work site. This means Continue reading →