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Employee Disclosure of COVID-19 Vaccinations

With more and more businesses taking the first steps to reopen as the pandemic begins to wane, I have been getting this question from more and more of my clients: Can we ask our employees to provide proof that they have been vaccinated against COVID-19?  The answer is that an employer may indeed ask that question and make that inquiry, but employers must be careful regarding how far they probe into that question.

The Equal Employment Opportunity Commission (“EEOC”) has taken the position that asking someone whether they are fully vaccinated does not result in the disclosure of an employee’s medical information, so asking such a question is fair game for an employer. In the EEOC’s view, just asking the question is not a medical exam because there could be many reasons (other than, for example, employee health issues) that may be why an employee has not been vaccinated. Where you as an employer will need to be cautious is when you start asking questions beyond the vaccination proof issue, such as why the employee is not vaccinated.  There you might be treading too close to asking improper questions about an employee’s medical status. If you find yourself in that territory, you will have to evaluate the employee’s response within the framework of the Americans with Disabilities Act’s (ADA) (or Title VII’s, if the employee’s response implicates religious beliefs) requirement to justify proof of vaccination being “job-related and consistent with business necessity.” That can be a difficult standard to meet, so employers who wish to venture into this area would be wise to (1) strictly limit their inquiry exclusively to whether or not the employee is fully vaccinated; and (2) requesting proof of that vaccination, say asking for a copy of the vaccination card itself. That way you avoid getting into these medical issue topics, and you the employer would then keep any proof information you obtained from the employee confidential like you would with any other private information received on an employee.

As things continue to evolve, we expect to receive more guidance from the EEOC on what employers can do as part of their reopening efforts, and as that happens, we will provide further legal updates to assist employers in those reopening efforts.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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New Jersey Issues Employer Vaccine Guidelines

With the increased availability of COVID-19 vaccines in New Jersey, the state Department of Health (“DOH”) recently issued Guidelines allowing employers to mandate COVID-19 vaccinations for its employees. Nonetheless, even in the face of such state Guidelines, employers should still proceed cautiously in implementing such vaccine mandates for employees given the mere emergency use authorization granted to the currently available COVID-19 vaccines under federal law.

In announcing its Guidelines allowing for mandatory vaccinations, the state DOH adopted in large part the Guidelines previously outlined by the Equal Employment Opportunity Commission (“EEOC”) regarding COVID-19 employer vaccination mandates. The state DOH also announced three exceptions to this vaccine mandate rule:

  1. The employee has a disability that would prevent them from getting the vaccine.
  2. The employee’s doctor advised them not to get the vaccine while pregnant or breastfeeding
  3. The employee has sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.

If the employee can prove such exceptions, the employer must provide a reasonable accommodation, per the state DOH’s Guidelines. Moreover, on the other hand, employers can avoid providing an accommodation to an employee where doing so imposes an undue burden on the employer’s operations.

Some other important aspects of the state DOL Guidelines:

  1. Employers generally may request medical documentation to confirm a disability.
  2. Employers may request medical documentation to confirm that an employee who is pregnant or breastfeeding was advised by their doctor to seek such accommodation.
  3. Employers must ensure that all information about an employee’s disability is kept confidential.
  4. If a sincerely held religious belief, practice, or observance precludes an employee from getting a COVID-19 vaccine, however, an employer generally may not question the employee’s sincerity. The exception to this requirement is if the employer has an “objective basis” of fact for questioning either the religious nature or the sincerity of a particular belief, practice, or observance. In that case, the employer may make a limited inquiry into the facts and circumstances supporting the employee’s request.
  5. Safety also can be considered in evaluating whether a potential accommodation would be reasonable. In this regard, an employer must base its decisions regarding any potential safety hazard on objective, scientific evidence and not on unfounded assumptions or stereotypes.

Where an employer must provide a reasonable accommodation, such a measure may include:

  1. Allowing the employee to continue to work remotely, or otherwise to work in a manner that would reduce or eliminate the risk of harm to other employees or to the public.
  2. Providing the employee with personal protective equipment that sufficiently mitigates the employee’s risk of COVID-19 transmission and exposure.

Whether these Guidelines will result in an increased number of employer mandated vaccination programs is difficult to predict. So far, most employers have decided against mandating employee vaccinations because the vaccines have only been approved for emergency use and are not fully authorized and licensed vaccines.

Even with this New Jersey Guidelines directive, the Federal Food and Drug Law’s requirement that no one can be forced to take a vaccine that is only approved for emergency use still exists as a limitation and raises a possible legal risk for employers. Granted, its application in these situations raise novel issues. And, we do not have a definitive answer in the context of emergency use vaccines. Nevertheless, it presents enough of a concern that employers should proceed cautiously in mandating employee vaccines even with the recent state DOH Guidelines.

In that regard, here is one very real and significant legal risk for employers in New Jersey. Let’s say you as an employer want to mandate the vaccination, and one of your employees refuses to take it and they do not fall into one of the stated exceptions. Now, let’s also assume that you as the employer plan to take some type of adverse employment action against the employee-maybe you decide to fire them or put them on a forced unpaid leave of absence. That employee could potentially bring suit and claim that the refusal to get vaccinated constituted a form of whistleblowing and violates the New Jersey CEPA law, with the public policy cited to support the claim being the federal food and drug law. That is one risk that the employer faces in mandating COVID vaccinations when the vaccine is still authorized just for emergency use. This is an important reason why most employers have opted instead to recommend vaccination, with many also offering incentives to promote greater employee response. This later way of obtaining the wanted result of greater employee vaccinations in the workplace is the far safer approach to this issue rather than employer mandates.

No doubt, we can expect this situation on employee vaccinations to continue to evolve, and employers will likely receive further federal and state guidance on how best to proceed as the desire to return to some normalcy in the workplace continues to develop.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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COVID-19 and the Holidays

With the holiday season now upon us, there are growing concerns about how the COVID-19 pandemic could worsen because of the expected social gathering activities associated with the holiday season, and how that could impact New Jersey workplaces. The Centers for Disease Control (“CDC”) has already issued directives that persons should not travel during the holiday season, and that they should likewise keep their gatherings small (ideally limited to their own households), and where possible, keep them outside to maintain good social distancing. In light of the CDC’s directive, I have gotten several questions from clients about what employers can do to ensure that their employees follow such directives and engage in safe behavior during the upcoming holidays. The answer to those questions will likely surprise you.

Believe it or not, even in a place like New Jersey which is very pro-employee, employers can actually demand that their employees refrain from travelling during the holiday season, and likewise minimize their social contacts and holiday gatherings, even when such conduct is happening outside of working hours. Why? Because of the public health crisis caused by COVID-19, employers have a right (and some would say a legal duty) to safeguard their workplaces, and in light of the CDC directive against holiday travel, employers can mandate no employee travel and likewise require that employee family and other related social gatherings also adhere to CDC recommendations. Employers have been given a great deal of latitude during this public health emergency in taking steps to protect the workplace, and requiring employees to adhere to the recent CDC directives fall within the scope of that discretionary authority.

So, in light of the above, are you telling me that as an employer, I could actually discipline or even fire an employee who fails to follow the CDC recommendations? My answer: absolutely.  Most employees in New Jersey are at will, meaning that an employee can be fired for any reason, or no reason at all, so long as it is not an illegal reason. There is no legal prohibition in New Jersey that would prevent an employer from firing or disciplining an employee who refuses to adhere to an employer directive that an employee not travel during the holidays and/or minimize their family gatherings in light of the concerns raised by the CDC. Some states like Colorado and California have laws that prevent employers from firing employees for doing lawfully allowable things outside of work hours, but New Jersey has no such law. Thus, if an employer wants to mandate that its employees follow what the CDC has mandated about travel and social gatherings during this holiday season, employers in New Jersey are free to impose such requirements, and may issue appropriate discipline if employees fail to follow such requirements.

So, employers here in New Jersey have one more tool to use in protecting the workplace while the COVID-19 pandemic continues to wreak havoc on day to day life.

I wish everyone a safe and happy holiday season.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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COVID-19 and New Disability Obligations

In this space, I have written a couple articles on the need for employers to be aware of accommodation obligations under federal and state disability laws for those employees who are high risk for either COVID-19 exposure or more serious health problems from COVID-19.  I want to focus today on a different aspect of the accommodation duty — the need to accommodate the possible long term health problems flowing from recovery from COVID-19 themselves.

For many persons who survive their bout with COVID-19, long term heath consequences could continue for some time after COVID-19 no longer provides a risk of death or contagion to others. Some have continuing respiratory problems. Others continue to be lethargic for weeks after receiving a negative COVID-19 test. Still others experience long and short term cognitive issues. While COVID-19 may have left their bodies, new health problems exist, and these medical issues themselves will likely create possible accommodation requirements for employers because those issues would most likely qualify as a legal disability.

Employers need to be cognizant of such accommodation duties, and should approach them in the same fashion as they would any other accommodation request for a particular health ailment. Remember to follow the guidance provided previously in past articles about the importance of the interactive process in exploring possible accommodations and gaining needed medical information from the employee to help shape that dialogue and craft a potential accommodation, or alternatively, a defense to that request if no accommodation could work for the employer. Failing to do so will no doubt generate unwanted legal headaches for the employer. Thus, employers should not ignore this new health phenomenon.

So, remember, even when COVID-19 itself seems to have been beaten by the employee, its possible long term exposure effects on an employee may remain and could require some form of workplace accommodation.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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EEOC Clarifies Allowable COVID 19 Testing For Employees

Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) has continued to refine its past issued Guidances on what employers can do to safeguard employees from COVID-19 workplace exposure. One such measure that employers can utilize is mandating that all employees be tested for COVID-19.  But previously the EEOC never said what type of testing can be done. The EEOC has recently clarified precisely what kind of testing employers can now require of its employees.

As many know, there are now currently two types of available tests that can be utilized to detect COVID-19 exposure. The first is a diagnostic test that determines whether someone has the coronavirus at the time of the testing. The second kind is an antibody test that determines whether the individual from past exposure to coronavirus has developed any protective antibodies to the virus. When the EEOC announced its earlier Guidance that employee COVID-19 testing was permissible, employers thought that they had the option to require either type (or both) kinds of testing. That has changed with the EEOC’s latest Guidance.

Now, the only kind of testing allowable is diagnostic to determine whether the individual at the time of the testing has contracted COVID-19.  Antibody testing is not allowed-why?  The EEOC’s rationale for prohibiting such testing flows from recommendations from the Centers for Disease Control (“CDC”) which now states that antibody testing should not be used to return persons to the workplace. Deferring to the CDC’s conclusion about the use of antibody tests for returning employees, the EEOC Guidance now has determined that it is not an appropriate medical test that meets the job relatedness requirement for allowable examinations under the Americans with Disabilities Act.

As the EEOC’s recent modification to its Guidance shows, we are dealing with an ever evolving situation that could change literally overnight. Thus, employers must continue to stay on top of all developments on what can and cannot be done as many states continue their phased economic re-openings.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.