Many employers will likely encourage vaccination rather than mandate it. In this Ladders article, McDermott Partner Michelle Strowhiro notes the administrative burdens associated with tracking mandatory employee vaccination.
As the world enters the third year of the COVID-19 pandemic, employers have gained a greater understanding about the virus’ relationship with US anti-discrimination laws. With the inevitable rise of future variants and long-haul COVID-19 cases, however, businesses are still navigating murky waters. In this Law360 article, McDermott Partner Lindsay Ditlow offers perspective about worker accommodation requests and what they mean for employers.
Even though the US Supreme Court blocked the US Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test mandate for most employers, there is still confusion around who covers the cost for employee COVID-19 tests. In this Law360 article, McDermott’s Dawn Peacock outlines what employers need to know.
Throughout the latest COVID-19 wave, some healthcare employers have relaxed safety measures to bring COVID-positive employees back to work. According to this Corporate Counsel article, these decisions may signal a new direction in how businesses deal with safety measures as they navigate a competitive labor market and demand. McDermott’s Abigail M. Kagan noted many healthcare facilities are doing their best to balance employee safety with workplace strain.
“If a patient hears that their nurse has tested positive that morning, the patient may be uncomfortable,” Kagan noted. “ … On the other hand, if it’s the difference between having no nurse, or having a nurse that medical authorities in the (United States) seem to believe is not going to be contagious anymore, that’s something that employers have to think about.”
As more employers mandate vaccines for their workforces, in-house legal departments are encountering a host of challenges, including understanding religious accommodations and minimizing litigation exposure. According to this article published in Law.com, employers should have the ability to navigate Americans with Disabilities Act (ADA) and Title VII-related accommodation requests. However, McDermott Partner Carole Spink said many employers have never encountered the current breadth of religious exemption requests from their workforces.
A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.
“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.
Research continues to shed light on COVID-19’s long-term health effects for some people, and these “post-COVID conditions” will create additional challenges for employers.
“As they have done throughout the pandemic, employers should have a plan for addressing potential long-term absences as a result of post-COVID effects. On the practical side, at some point employers may need to determine whether a particular situation has become such that providing a continuing reasonable accommodation would pose an undue burden,” Spink notes.
What should employers do if a job applicant voluntarily discloses a disability during an interview?
In most cases, employers cannot ask disability-related questions until after an applicant receives a conditional job offer, according to McDermott’s Laurie A. Baddon in this Society for Human Resource Management article. Once the employer makes a conditional offer, the employer can ask disability-related questions and require medical examinations for any applicant. Employers can ask applicants about their ability to perform essential job duties with or without accommodation.
As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.
Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.
“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”
As employees begin to return to their offices, human resource teams are being inundated with accommodation requests. The reasons behind these requests include:
- Concerns about COVID-19 exposure;
- Convenience of working from home;
- Lack of child care options and costs of care; and
- Weariness of daily commute.
McDermott’s Laurie Baddon says in an article published in SHRM that employers should share their policies with their workforces well in advance to give HR and legal teams time to process and assess accommodation requests.