Friday, August 6, 2021

Reminder – Virginia’s New Disability Discrimination Provisions Goes Into Effect July 1, 2021

 By Jessica Summers, Principal

During its 2021 Special Session, the Virginia General Assembly passed a new law (HB1848) to amend and expand the Virginia Human Rights Act (VHRA). 

OSHA COVID-19 Emergency Temporary Standard Only Applies to Healthcare Workers

 By Jessica Summers, Principal

On Thursday, the Occupational Safety and Health Administration (OSHA) surprised everyone by announcing that its much anticipated COVID-19 Emergency Temporary Standard (ETS) will apply only to healthcare and healthcare support service workers. 

Virginia’s Mass Mask Confusion

By Jessica Summers, Principal

Recent developments regarding when vaccinated individuals can be permitted to go without masks has left many Virginia employers in a state of confusion.  So let’s unpack what has occurred and what we know to date. 

EEOC Clarifies Legal Issues for Employers When Mandating, Encouraging or Asking About Vaccinations

By Hayes Edwards, Principal

On May 28, 2021, EEOC issued 21 new and updated points of guidance (Section K) for employers grappling with the legality of requiring, encouraging, and even providing Covid-19 vaccinations for employees.  The release primarily addresses the Americans with Disability Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).  EEOC also provides resources to which employers can refer employees who are seeking vaccinations or further information.

Incentives

Generally, vaccine incentives are compliant with ADA.  Employers can also ask for confirmation of vaccinations received from third-parties (pharmacies, municipalities, etc.) without it qualifying as a “disability related inquiry” that requires justification based upon business necessities—although information received must be treated as confidential.  For employer-provided vaccines, where the employer would be asking “screening questions,” incentives must not be so substantial as to be deemed “coercive” in creating pressure to disclose protected medical information.

GINA does not prohibit incentives for employer-provided vaccine programs, so long as no genetic information is obtained during the screening process.

Vaccine Mandates for Disabled Employees

Although mandating vaccines does not generally violate federal law, EEOC highlighted how some employees whose qualifying disability would exempt them from a vaccine mandate and require reasonable accommodations such as working from home, working with a face covering, working at a distance from others, or working a different schedule.  In a similar vein of civil rights, employers are advised to ensure their vaccine requirements do not have a “disparate impact” on any particular race, color, religion, sex, or national origin. 

However, employers are not completely barred from requesting that disabled employees be vaccinated.  If indeed a worker would pose a “direct threat” to themselves or others in the workplace if not vaccinated, and that threat cannot be reduced or eliminated by a reasonable accommodation, then the employer may enforce the mandate.  Employers would be wise to clearly announce the vaccine mandates and encourage requests for any accommodations from employees who might qualify—and to employ ADA protocols in any ensuing discussions.

Screening Questions

Screening questions asked during employer-provided vaccinations qualify for ADA protection, which means the questions must qualify as “job related and consistent with business necessity.”  To meet that standard, all questions should be examined to make sure that an unsatisfactory answer (or non-answer) would truly pose a direct threat to the health and safety or that employee or others.  However, this requirement does not apply to voluntary vaccine administration by employers—but only if the questions (like the vaccines) are voluntary. 

Although questions of employees about vaccinations by a third-party is not a “disability-related inquiry,” any documentation provided in response must be treated as confidential.

Family Members

EEOC also clarified that requests for employees to confirm that their family members have been vaccinated does not invoke GINA, because that information does not relate to the manifestation of a disease or disorder in a family member, or any other form of genetic information. 

However, GINA would preclude incentives for an employer’s family member to be vaccinated through an employer-provided vaccine program, as the screening questions would necessarily address the employee’s family medical history.  GINA specifically prohibits offering incentives for such information.  That said, employers can still offer vaccinations to family members without incentives, so long as information obtained remains confidential, especially from any managers or others who make employment decisions about the employee.

If you have questions or need assistance, please contact the employment attorneys at Paley Rothman.

Friday, May 14, 2021

Masks Off? Not So Fast….

By: Jessica Summers, Principal

On Thursday, May 13, 2021, the Centers for Disease Control and Prevention (CDC) made big news by announcing that, subject to certain exceptions, “fully vaccinated people can resume activities without wearing a mask or physically distancing.”

Wednesday, April 28, 2021

Virginia Issues Final Coronavirus Workplace Safety Measures: Is Your Business in Compliance?

 By: Jessica Summers, Principal

As we’ve previously blogged, last summer Virginia became the first state to enact mandatory COVID-19 workplace safety rules. 

Montgomery County Expands “Ban the Box” Law, Creates New Pitfalls for Employers

 By: Hayes Edwards, Associate

As of February 1, 2021, all employers doing business in Montgomery County, Maryland, with at least one employee located in the county, are subject to new prohibitions on inquiries into job applicants’ criminal history. The previous version of the County’s “Ban the Box” law, which only applied to employers with more than 15 employees, allowed such inquiries after the first interview. That original law, effective since January 1, 2015, also includes restrictions on employers’ use of information obtained from a compliant background check and inquiry process.