In 2021 there is a new status symbol that will determine who is “in” and who is “out” in many social situations. It’s not fashion or cars and it’s not your number of followers on social media. The new hot status for 2021 will be: “Vaxed” or “Un-Vaxed.”
As the FDA approved Covid-19 vaccines become more widely distributed over the next few months, the question of who is “Vaxed” and who is “Un-Vaxed” will start to take on tremendous importance. As new strains of Covid-19 spread we can easily imagine restaurants or stores with “Vaxed Only!” signs on their doors. One’s vaccination status could soon determine one’s access to schools, public conveyances, businesses, and churches. It may also determine where one can work.
As businesses and institutions grapple with the effects of the pandemic the wide availability of effective vaccines will force the issue of whether to require their employees to receive the vaccine in order to keep their jobs. (See related article Employer Mandated Covid-19 Vaccinations – Can They Do That?). For businesses in customer-facing industries like hospitality or food service, the question is pressing. Will anyone want to go to a barber that was not vaccinated? Wouldn’t customers feel safer eating at a restaurant where all employees are vaccinated? While many are awaiting the vaccine with anticipation, many have concerns about the vaccines and do not want them. Some are medically unable to receive a vaccine and others have personal or even religious objections to them. What right does an employee have to refuse an employer’s mandated Covid-19 vaccine? Will employees be fired for refusing? What can employer’s do to respond to valid and deeply held objections to a blanket vaccine requirement?
The basic rule is that in an employment at will situation an employer can require a vaccine as a condition of employment. Almost all employment in the US is employment at will. If an employee is a member of a union, then a vaccine mandate would be negotiated by the union, but would likely become a requirement at the end of that process. Even where an employee has an individually negotiated employment contract, those agreements often contain provisions that allow the employer to change company policies and job requirements, particularly for worker safety. Thus, in most all situations, an employer can require its workers to be vaccinated.
If it strikes you as outrageously unfair that employers can require you to undergo an intrusive medical procedure against your will and your only recourse is to give up your livelihood and sole means of support for you and your children, you are not alone. While most Americans are clamoring for this particular vaccine there is also widespread concern. Many women of child-bearing age have expressed objections based on the lack of longitudinal research on the effects of the vaccines on the reproductive system. Many people of color have expressed objections to the vaccine based on historic precedents of medical experimentation on minority populations. If the ability to force vaccinations on employees under threat of economic ruin seems to be too much power for employers, we can thank the “at will employment rule.” This is the great default principle of American employment law. It holds that employers can essentially do (or not do) anything they want to their employees provided they do not violate specific statutes. Under this rule, as long as they stay within the law, employers are a law unto themselves.
There are a few exceptions to this general rule allowing employer mandated vaccines. While the employment at will rule allows employers to require vaccines as a condition of employment, their vaccination policies must comply with the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other state and federal workplace laws. The question then becomes when do these laws prevent an employer’s vaccine requirement?
One limitation on an employer’s right to force vaccinations covers employees who cannot be vaccinated due to a disability. The ADA requires that if an employer’s vaccine requirement will force the termination of a worker who cannot be vaccinated due to a disability, the employer must show that the unvaccinated worker will pose a “direct threat” or will create a serious risk of “substantial harm” to the worker, co-workers, or the public. Only if that risk is significant and it cannot be eliminated or reduced by some reasonable accommodation can the disabled employee be terminated. The EEOC has provided some guidance on how employers should assess the potential risk of an unvaccinated employee including: assessing the duration, severity, likelihood, and imminence of the potential harm. If an accommodation such as masks, or a work from home option would reduce the risk, then the disabled employee should be accommodated.
While this exception is fairly easy to understand on paper, it might not be so easy to implement in the workplace. What if the only way to mitigate the risk and to accommodate the one disabled employee is to require all other employees and all customers to wear masks in the facility? Right now everyone expects to wear masks all the time anyway but what about when the mask restrictions could be lifted due to mass vaccinations? Will that still be a “reasonable accommodation?”
A second exception to the employer’s right to force vaccinations on their workers is carved out in Title VII. An employer must accommodate an employee’s sincerely held religious objection to a vaccine unless the accommodation causes “undue hardship” to the employer. Sounds fair enough. The trouble with this rule is that the definition of “undue hardship” is any accommodation that has more than a “de minimis” or “absolutely minimal” cost or burden to an employer. How will courts apply this rule in the example above, where a single employee with a religious accommodation can continue to work only if all employees and customers are provided PPE? As this example suggests, the “de minimis” standard could be very difficult to meet in the workplace.
While the EEOC is trying to develop a set of workable guidelines that accommodates employee’s rights under existing laws like the ADA and Title VII, there are no accommodations available for the employee who objects to vaccination based on personal concerns like racial disparities or lack of research on fertility effects. For most workers who object to vaccination for a host of personal reasons, there will be no option for dissent. “Shoot up and shut up” will be the rule for many.
There are times when public safety and the protection of our economy should take precedence over personal choice. I personally intend to get vaccinated as soon as possible whether my employer wants me to or not. (Carey & Associates, P.C. will leave it to the employee’s discretion about whether to vaccinate or not). It is important however, to consider the power dynamics and the broad implications of the employment at will rule when it invades the province of our bodily integrity and personal conscience. In a world where politicians are willing to substitute facts for politically convenient fantasies, it is easy to imagine these power dynamics leading to much more extensive invasions of personal choice. In the short term at least, “Vaxed” is likely to be the new “Black.”
This episode explores the new controversy surrounding employer mandated Covid-19 vaccinations. Can employers do that? The simple answer is yes. The episode explores earlier governmental intrusion related to the smallpox epidemic of 1905 and then brings it forward to the current Covid-19 era. Mark explores your liberty interest to be free from governmental intrusion now being orchestrated through each individual’s employment.
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Simple Answer- Yes! After less than a year of this grueling Covid-19 pandemic, we were surprised to hear that a vaccine had been developed so quickly. We are now in the vaccination roll out phase, which is proving to be not so simple. As part of the nationwide vaccination process, the federal government has teamed up with employers to mandate employees vaccinate nationwide.
If you have not yet heard, employers are requiring employees to get the Covid-19 vaccination before returning to work. How can an employer do this? Is the Covid-19 vaccination a medical procedure wherein specific medical questions will be asked? What if I do not want to get vaccinated because of other medical health concerns? What if I object on religious grounds? The following discussion will answer these questions and more.
As vaccination for the Covid-19 virus is at the forefront of everyone’s mind, I decided to research this issue further. I was curious about the history of mandatory vaccinations by the federal government and what role this plays on your liberty interest from government sponsored intrusion on your physical being. You will have to bear with me here as you will need a little constitutional law background to understand this state sponsored infringement of your liberty interest now being implemented through employers.
The 14th Amendment to the United States Constitution mandates that no state shall make or enforce any law that abridges the privileges or immunities of the citizens of the United States or deprive any person of life, liberty, or property without due process of the law. Each State and the Federal government has a police power to enact health laws regarding lockdowns, quarantines and mandatory vaccination. Under constitutional scrutiny analysis, legislation under the police power must be rationally related, which means it must have a substantial relationship to the legislative objective, and must not be unreasonable, arbitrary or capricious.
But the government’s police power also must balance against each individual’s right to self-autonomy such as the right to abortion, contraception and freedom from involuntary medical procedures. We as individuals have a right to protect our bodies against intrusion by the government. However, this inalienable right must be balanced against our collective rights, such that your right to self-autonomy must not also harm your fellow Americans’ right to the same autonomy. Hence, we confront the delicate balancing act that we now face regarding the Covid-19 pandemic and mandatory vaccinations through employment.
According to a New York Times article on January 14, 2021, “the government is not requiring people to take Covid-19 vaccines, but it has a long history of permitting such mandates. In 1905, for example, the Supreme Court upheld [Jacobson v. Commonwealth of Massachusetts] the right of authorities to require smallpox vaccinations. Many hospitals require some staff to get vaccinated against the flu or hepatitis B. Children must get certain vaccines to be enrolled in school.” By the way, history has demonstrated that mandatory vaccination led to the complete elimination of the smallpox virus, only after it infected 300 million people.
Using the Covid-19 pandemic as the present backdrop, in 1905 the Supreme Court in Jacobson, which is still good law, eerily held the following. But first, I quote the question presented to the Court, “[i]s the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state?” The Court answered the question by holding the state could exercise its’ police power to require mandatory vaccination against smallpox:
“The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman [person] to care for his [their] own body and health in such way as to him [everyone] seems best; and that the exception of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his [their] person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restrain. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself [themselves] would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his [their] own, whether in respect of his [their] person or his [their] property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state…”
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance supporting mandatory vaccination by employers, subject to some exceptions regarding disability, genetic privacy and religious exemption.
“If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.” (EEOC Guidance on Covid-19 Vaccinations)
Please see items K.6 and K.7 in the EEOC Guidance regarding important exceptions to mandatory vaccination due to existing disability and religious observance grounds. The guidance also explains that mandatory vaccination programs instituted by employers must not ask questions that impermissibly seek employee medical information. According to the EEOC, the mandatory vaccination is not a medical procedure and thus is permissible.
But what becomes of this state power now entrusted upon private employers and the role of our liberty interest when employers mandate employees to vaccinate. Is our liberty interest invaded? Is the state police power operating through the hands of the employer? Can you sue your employer on constitutional grounds? I will endeavor to say that it is a close question of law and preferred that the federal government does not lean so heavily on us through such a vital means of our individual financial situations, aka our jobs. Please note, there exists no federal legislation here mandating vaccination, but only an agency guidance, which only garners judicial deferential treatment as the EEOC is one of several federal agencies charged with regulating workplace rights. The EEOC’s state action touches too closely for my own comfort level. But like smallpox, Covid-19 has wreaked havoc and killed thousands and we can all unanimously agree the government, as in a time of war, must intervene to protect us against this deadly virus, even if it means jeopardizing our individual liberty interests. Covid-19 will not go away and I am sure the EEOC and future legislative bodies are cognizant of our individual liberty interests and desire not to trample them so haphazardly, which would not pass constitutional muster. In the end, like smallpox, Covid-19 must be eradicated so you and I can return to the normal we all took for granted before this historic episode began.
Obviously, we are at threshold of this legal analysis regarding employer mandated vaccination, not the end. The EEOC guidance is just that guidance, not law and not codified regulation of a federal agency. We need more time and further factual development to determine if state police power is currently operational and then is such power infringing upon our liberty interests and having a significant resulting injury to many.
Way back in March, when I read the Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Relief, and Economic Security Act (CARES Act), I thought they were great. Increased unemployment benefits through the end of July, unemployment benefits for up to 37 weeks, unemployment benefits for gig workers, two weeks of paid leave in case you or a loved one gets sick, and up 12 weeks of paid emergency family medical leave if you are unable to work because your child’s school or child care becomes unavailable. Americas workers were being looked after when we need it most.
The laws weren’t perfect. They had loopholes that allowed large and well-capitalized businesses to grab Paycheck Protection Program loans intended for small businesses. But as imperfect as they are, no one thought we would be facing the same emergency in November as we faced in March. No one anticipated we’d have 8 months of lockdown, remote learning, masking, social distancing, and a quarter of a million dead Americans.
Yet here we are. New York City just announced that it is closing its public schools and returning to all-remote learning. My hometown’s public school system did not open at all this fall. (But we did get the John Oliver Memorial Sewer Plant. Comme ci, comme ça.)
What does this mean for American workers? It’s not good.
The worker protections in the FFCRA and the CARES Act end on December 31, 2020. Happy New Year! Congress is in recess until after Thanksgiving and no one expects them to become serious about coronavirus relief when they return. Even if Congress did, no one expects the President to focus it.
Our best-case scenario is a stopgap agreement to extend the laws for a few weeks for the new Congress to and new administration to take office. But a stopgap won’t be enough for many Americans.
Remember that generous two weeks of paid sick leave if we develop coronavirus symptoms? Common cold symptoms caused many of us to use days – and rightly so – but slow test results had us burn through more sick days than necessary waiting for the negative results that allowed us to return to work. I’ve had two coronavirus scares in the last 8 months, both negative. If I couldn’t work from home, I would have used up my emergency paid sick leave and then some.
Remember those 12 weeks of paid Emergency Family Medical Leave? If your children are especially attentive and diligent teenagers, you’ve got nothing to worry about. Everyone else, chances are good you’ve already used a lot of that time caring for your younger children and playing teacher for your older children. My youngest is 16. Brilliant, but not especially attentive. I was reminded daily why I dropped my secondary ed major, and why it was the right decision.
Next, the unemployed. The good news is that the jobs numbers have been better than many expected. We hit a high of 14.7% unemployment in April, falling to 6.9% in October. This is a wonderful improvement, but it is so much higher than the 3.6% unemployment of January. The bad news is that the enhanced unemployment benefits of $600 per week ended on July 31, 2020, and the extended benefits for 37 weeks to gig workers and regular employees alike ends December 31, 2020.
A furlough generally means workers’ hours have been cut or eliminated temporarily, or requires that they take a certain amount of unpaid time off. Furloughed workers are still considered active employees and eligible for some benefits. While furlough doesn’t have a technical legal meaning, employers—especially since the onset of the pandemic—are using the term to signal that it’s a status where employees can expect to maintain their health care benefits and eventually be called back to work. Still, a furlough can lead to termination.
A furlough does not offer job security, though employers choosing to put employees on such leave typically intend to bring them back.
“Employers are operating in a lot of uncertainty right now, where they truly believed what would be two to three months then became eight months, and they’re now having to forecast business needs in a different environment,” says Stephanie Lewis, an attorney with employment law firm Jackson Lewis in Greenville, S.C. “We are seeing companies that are having to convert furloughs into layoffs.”
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Furloughed workers, while still considered active employees, aren’t paid for time they don’t work. If, however, employers ask employees to work at any point during a furlough, workers must be paid in accordance with their regular salary or hourly rate, says attorney Mark Carey of Carey & Associates, an employment law firm in Southport, Conn.
In the meantime, furloughed employees can and should apply for unemployment benefits. All state unemployment systems were modified to make such workers eligible to collect unemployment.
“You should apply for every week you’re off. Even if you’re off one week and on the next,” says Ms. Lewis.
And while the employer can dictate the length and span of furlough, many are offering flexibility where they can, allowing workers to choose which weeks or months to take off.
If employers furlough employees without terminating their employment, they should make sure those workers are continually offered health care coverage to avoid penalties under the Affordable Care Act.
In fact, says Ms. Lewis, “most employers have worked hard for permission to keep employees covered by benefits.” Many furloughed workers are now crossing into a period where they would be ineligible for coverage—typically after 60 or 90 days on most benefit plans if they’re not actively at work—and would have to move to Cobra, which is more expensive for many people. Employers have requested approval to retain coverage, and benefits providers have allowed that, says Ms. Lewis.
An employer can’t restrict furloughed employees from taking other work outside the company—and employees who find other work may choose to remain in that job even if they’re called back by their original employer.
Companies bringing employees back to work must also treat furloughed employees equally or discrimination issues may arise. “These have to be equal-employment opportunity scenarios with furloughing and bringing employees back to work. People could raise issues of gender, race and age,” says Mr. Carey. Age tends to be the largest problem in rehiring after furlough, he says, as workers who are older tend to be paid more because they’ve been employed longer.
“In science, computing, and engineering, a ‘black box’ is a device, system or object which can be viewed in terms of its inputs and outputs…without any knowledge of its internal workings. Its implementation is ‘opaque’ ([i.e.] black). Almost anything might be referred to as a black box: a transistor, an engine, an algorithm, the human brain, an institution or government.” (https://en.wikipedia.org/wiki/Black_box).
When it comes to the world of requests for disability accommodations under the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act, the “black box” or the “unseen internal mechanism,” is the ever elusive “interactive process”. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted. I analogize this process to a “black box” because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in this process or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered?
Now factor in the public health, work place safety, and personal medical complexities of the Covid-19 pandemic and the concomitant work-from home revolution and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on site? Are accommodations automatically available for those with health conditions that put them at greater risk for Covid-19? If a disabled employee was able to do her job during temporary telework periods due to Covid-19, is she entitled to continue telework after the employer resumes regular operations? More importantly, what is the specific “interactive process” that will be used to decide these issues?
Let’s see if we can figure out what is going on inside the black box. As with all black box analysis we are going to examine the “inputs” and “outputs” to determine what unseen principle or byzantine process is going on inside the box itself. The “inputs” will be specific request for accommodation scenarios and the “outputs” will be the Equal Employment Opportunity Commission’s (“EEOC”) guidelines and recommendations for ADA requests for accommodation during Coivid-19.
First, let’s look at the box itself. The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. Under the ADA, “reasonable accommodations” are adjustments or modifications in the facilities, operations, or equipment provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an “undue hardship,” on the employer. “Undue hardship” means “significant difficulty or expense.” That is the basic reasonable accommodation rule under the ADA.
An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that will not impose an undue hardship. But how is that determination made by the employer? The not so simple answer is: “Through the ‘interactive process.’” We have now entered the black box.
The “interactive process”, as described above, is the information gathering and discussion process between the employee requesting the disability accommodation and the employer. It begins when a request for accommodation is made by an employee and the employer responds. Where it ends is more difficult to pinpoint. This process may continue or stop and resume again when circumstances change. It should really be thought of as an on-going process. Let’s look at some “inputs” and “outputs” to see how the “interactive process” works:
› If my job requires me to be on-site and I have a preexisting medical condition that makes me especially vulnerable to Covid-19, am I entitled to reasonable accommodations under the ADA?
Possibly. The threshold question is whether your condition is a disability as defined by the ADA. If the condition is not a disability under the ADA you might not be entitled to accommodation even if you are at higher risk. The ADA defines a “disability” as “a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.” When requesting an accommodation, the employee should ask his or her physician whether the condition in question meets that definition. Some physical and mental conditions which meet the definition include but are not limited to: heart disease, diabetes, lung disease, compromised immunity, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. In this example, the employer would begin the interactive process by asking questions and/or requesting medical documentation from the employee to determine whether the condition for which the employee is requesting an accommodation is an ADA disability. If it is not, then the process will likely end with a denial. If the condition is in fact an ADA disability then the interactive process continues with an exploration of the accommodations possible and available.
›If my job is on-site and I have a preexisting medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19, how do I know what accommodations I can get?
The type of accommodations needed are usually proposed initially by the employee or her physician. The interactive process continues here as the employer then asks questions such as: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of her position (that is, the fundamental job duties). Some recommended Covid-19 accommodations to reduce exposure include without limitation: changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers; providing personal protective equipment (PPE); temporary job restructuring of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.
›Can my employer just say that my requested accommodations pose an “undue hardship,” and not engage in any sort of process?
The employer may not simply deny a requested accommodation without engaging in the interactive process. The employer is required to actually “discuss” the accommodations with the employee. If a particular requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship.( In discussing accommodation requests, the EEOC recommends that employers and employees consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.) The discussion of proposed accommodations and the proposal of alternatives is part of the required process. Further, a general denial by an employer is insufficient. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The employer must consider certain factors such as:
the nature and cost of the accommodation needed;
the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
the impact of the accommodation on the operation of the facility.
If the employer cannot answer questions regarding these topics, it is likely that the interactive process was not properly conducted.
›When is an accommodation too costly? How can my employer decide? Won’t employers just say anything that costs money is too costly?
“Undue hardship” is determined based on the net cost to the employer. Employers are required to actually calculate costs and to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Thus, an employer is not only required to assess the cost-impact of a requested accommodation on the organization but must also determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. If only a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if she or he will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Again, if the employer is engaging in the interactive process in good faith, these points will be considered and discussed with the employee.
›Besides providing many new reasons for needing accommodations, how does Covid-19 affect the interactive process with my employer, if at all?
The interactive process is largely about assessing the relative burden of a particular accommodation on the employer’s operation. Therefore it makes sense that the financial, economic, and situational conditions affecting the workplace due to Covid-19 will factor into that calculus. In some cases, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one in the new conditions imposed by Covid-19. Further, an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations considering the facts of the particular workplace. For example, it may be more difficult now to conduct a needs assessment or to acquire certain PPE items. Covid-19 could cause “excusable delays” in the interactive process. The loss of some or all of an employer’s income stream because of the pandemic may affect the calculation of whether an accommodation is too costly. The physical layout of the facility may have changed due to Covid-19 safety measures, and a particular accommodation might not be feasible. Temporary accommodations might be granted and later changed or withdrawn as circumstances change. It might be easier to accommodate a request for telework or more difficult to obtain a temporary worker to take on marginal job duties. These complex factors make the interactive process more important than ever. Flexibility, creativity, and effort are needed to come up with workable accommodations in this challenging environment. The EEOC advises that there are many no-cost or very low-cost accommodations that can be found to assist those struggling to work during Covid-19.
›If I have a family member who has a medical condition (which is an ADA disability) that makes him/her especially vulnerable to Covid-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member?
No. While the ADA does prohibit discrimination based on one’s association with an individual with a disability, that protection is limited to disparate treatment or actual harassment. The ADA does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. Of course, an employer is free to provide such an accommodation if it chooses. While caregivers and family members of individuals with disabilities are not entitled to accommodations under the ADA, they may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the federal Families First Coronavirus Response Act. If an employee’s close family member has Covid-19, the FMLA could provide leave to care for that family member.
›If I have a medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19 and my employer allowed me (and others) to work remotely for a period of time, does my employer automatically have to grant me telework as a reasonable accommodation when the company returns to on-site work?
Not necessarily. Whenever an accommodation is requested the employer can engage in the interactive process and determine whether there is a disability related reason for it and whether there is an undue hardship under the circumstances. This is a fact-specific inquiry that can be made at the time the accommodation is requested. If the employee’s disability does not cause a limitation that will be relieved by telework, then it need not be granted. Further, if the employee’s disability related limitation can be addressed with another accommodation then that accommodation may be provided instead of telework. Additionally, if the telework arrangement requires the employer to excuse the employee from certain essential functions of the job, the employer need not excuse that function even if it did so voluntarily for a period of time out of necessity. The ADA does not require an employer to eliminate an essential function of a position as an accommodation. However, if the disability related limitation would be removed by telework and all essential functions of the employee’s job were performed satisfactorily during the telework period, then the period of telework could be seen as an experiment that demonstrates that the accommodation was effective and satisfies all job requirements. The interactive process must be flexible, cooperative, and truly interactive to determine what accommodations will work for employer and employee.
Based on our “black box” analysis here, it seems that the “unseen mechanism” that makes the interactive process work is some combination of cooperation, communication, and flexibility. While the specific results may vary widely depending on the factors mentioned here, it is clear that in the age of Covid-19, obtaining the right output from the “black box” that is the ADA interactive process requires a lot of input from all involved.
I have stress about Covid-19 at my office. Can I file for short-term disability?
The bottom line
Employees may be able to file for short-term disability if a medical professional diagnoses them with an anxiety disorder, depression or other mental illness due to that stress. But there are other options to consider under the Americans With Disabilities Act, depending on the person’s condition and workplace environment.
This worker’s situation is common these days.
“We get this question every week multiple times a week,” says Michelle Barrett Falconer, a partner at employment law firm Littler Mendelson.
First, workers should consult their employee handbook or human-resources portal to find out whether their company provides for short-term disability benefits. Five states—California, Hawaii, New Jersey, New York and Rhode Island—also have such programs. To apply, employees need a medical provider to identify they are temporarily disabled from performing their particular job.
“Stress itself is not going to be a reason. It has to manifest in some physical or mental condition,” says Alex Berke of Berke-Weiss Law, noting that some short-term disability plans have exclusions for mental health.
Valdi Licul, partner at Wigdor, says many insurance companies have put out FAQs in recent months. He says employees shouldn’t be afraid to ask to see the policy, which usually has a “summary plan description” explaining the worker’s rights in layman’s terms.
Carey & Associates’s Mark Carey recommends applying for short-term disability and leave under the Family and Medical Leave Act—which has a lower threshold for approval—at the same time. Short-term disability leave is six months and pays out a portion, usually around 60%, of an employee’s salary. FMLA is 12 weeks and typically unpaid, but offers job protection during the time of leave, which short-term disability doesn’t.
Both are protected under the Americans With Disabilities Act. But lawyers also recommend using the ADA to seek other reasonable accommodations, such as working remotely, having a single closed room to the employee’s self, or a flexible or staggered schedule. Such accommodations are worked out during what’s called the “interactive process” between worker and employer.
If an employee’s stress stems from their being part of the immunocompromised or at-risk population, the ADA can also help.
Ms. Falconer, who works on the employer’s or defense side of litigation, says while most cases coming in stem from the employee having a generalized stress about Covid-19, some are more directly linked to the workplace itself. Employees who are stressed because of their work and the fear of catching the virus may be able to file a worker’s compensation claim.
“For fictional worker Larry, let’s say part of his job is going to public events and he’s supposed to go speak at a banquet,” she says. “If his boss says you’ve got to go speak and he says I’m so fearful and the boss is putting pressure on him, he may say he has stress as a result of Covid and the pressure the boss is putting on him, which could be psychiatric injury.”
In this episode of the Employee Survival Guide we discuss how to apply for disability benefits through your employer if you fear for your personal safety at the workplace due to Covid-19. Whether you have an anxiety or panic disorder or you are trying to protect your vulnerability due to Covid-19, Employment Attorney Mark Carey will give you a short guide about how to apply for your employer’s Short Term Disability benefits and Long Term Disability benefits under a federal statute called ERISA (Employee Retirement Income Security Act). Mark will also discuss the very important overlap with the Family Medical Leave Act, the Americans With Disabilities Act and state antidiscrimination laws. He will show you how protected you actually are against your employer unfairly terminating you for taking a much needed disability leave of absence due to Covid-19. For more information, please contact Carey & Associates, P.C. at 203-255-4150 or email at firstname.lastname@example.org.
The Wall Street Journal (July 13, 2020) reported the following story with an interview with Employment Attorney Mark Carey, Carey & Associates, P.C. The story is reprinted herein in its entirety.
By Lauren Weber
“Somebody at my workplace tested positive for Covid-19. What are my employer’s legal obligations? What do they have to disclose to the rest of us employees and in what time frame?”
The bottom line
Your employer should immediately inform co-workers who have been exposed (federal and state agencies offer guidance on exposure criteria), while protecting the confidentiality of the affected employee, so colleagues can quarantine for the recommended 14 days, employment lawyers say. While the Centers for Disease Control and Prevention have made these recommendations clear, they are guidelines, not laws. Employers also have some obligations under the Occupational Safety and Health Act of 1970’s “general duty” clause, as well as under some state regulations.
Workers have a right to be free from “recognized hazards” that could cause death or serious injury, according to the “general duty” clause enforced by the Occupational Safety and Health Administration. OSHA may find that employers who didn’t inform employees immediately—and therefore didn’t tell them to quarantine—were violating their obligations, which could subject employers to fines or other enforcement actions. Keep in mind that OSHA is a small agency, and it has rarely flexed its enforcement muscles during the pandemic. Through July 9, it has received 6,442 Covid-19-related complaints and issued only one citation, an agency spokesperson said.
While workers can try to sue their company for negligence if they test positive for Covid-19 after being exposed by a co-worker, the employer will likely argue that the claim is covered, if at all, under the workers’ compensation system, says Jennifer Merrigan Fay, a Boston-based employment lawyer. Precedents haven’t yet been set, so it isn’t clear how courts will interpret OSHA and other standards in light of a highly contagious virus.
Some state laws require that employers report positive Covid-19 cases quickly to public-health authorities so that contact tracing with colleagues and others can take place. Depending on location, the employer here may have violated a state law or executive order if it didn’t inform the appropriate authorities, says Ms. Fay. New York and Massachusetts, for example, have reporting requirements.
Employers must balance confidentiality laws, which are enforced by the Equal Employment Opportunity Commission, with the rights of workers to be in a safe workplace, which is enforced by OSHA. Employers should not disclose the name or identifying details of the person who tested positive, says Connecticut-based attorney Mark Carey, even if workers can figure out the person’s identity themselves. “The immediacy of communication is paramount, but so is confidentiality,” he says.
When employers don’t inform workers of their exposure, they are likely afraid of the risk to operations, Mr. Carey says. They may also be concerned about having to pay wages to workers in quarantine. The Families First Coronavirus Response Act requires that employers with fewer than 500 workers cover two weeks of paid sick leave to those who have to quarantine. (Larger employers are subject to the longstanding Family and Medical Leave Act, which provides workers with unpaid leave.) But these aren’t reasons to delay or avoid disclosing important information to workers, Ms. Fay and Mr. Carey say.
For more information about this topic, please contact our employment attorneys at Carey & Associates, PC at 203-255-4150 or email to email@example.com. Thank you.
About a million years ago, I remember hearing that the Star Wars epic was meant to track the rise and fall of the Roman empire. It starts as a republic, becomes an empire as its boundaries grow and power is consolidated, becomes corrupt because power corrupts, and finally it falls. After the chaos, a new government starts the cycle again as a republic. I have no idea if this is true and, in any event, once Leia survived the vacuum of space with her Poppinsesque flying power it no longer mattered. But the New Path for The Workplace of Tomorrow is very different and we are going to show you why. So, let me tell you about the Old Path first so you can get your bearings.
The Old Path
Once upon a time, a person could expect to work for one or two companies (at most) for their entire adult lives, earn a decent wage, and retire with a pension. Manual laborers were unionized and enjoyed income and job protection from the strength of their ability to bargain collectively. Office workers were not typically union members, but their identities as employees of particular companies were practically encoded at the DNA level. Men (and they were nearly all men) at IBM wore dark suits, white dress shirts, rep ties, and wing tips. Men at Procter & Gamble wrote P&G Memos. In those days, a man could start off working in the mailroom with a high school diploma and, if he were hard working, smart, and white, he could make it to the Executive Suite.
Technically, most of the non-union “Organization Men” were employees at-will. They could leave at any time, for any reason, and their employers would terminate their employment at any time and for any reason. It just didn’t happen very much. The sense of community and shared purpose that eludes modern businesses was alive and well on the Old Path. Those team-building activities we “enjoy” at company retreats were unnecessary because companies fielded baseball teams and bowling teams and engaged in a variety of other activities. The International Ladies Garment Workers Union had a famous chorus that recorded tunes, gave concerts, and showed off their chops in many memorable commercials of the ‘70s.
Better Start Swimming Or You’ll Sink Like a Stone
Things began to change as union membership decreased in the 50s and 60s. The turbulent economic times of the early ‘70s through early ‘80s (oil embargo, inflation, recession, rinse, repeat), followed by the corporate raiders throughout the 80’s effectively severed the symbiotic relationship between workers and management in America. Raiders would take on huge debt to take over control of a public company, and then strip assets from the company to pay their debt or otherwise profit. These takeovers invariably involved massive layoffs and reorganizations of the companies. “Flat organizational structures” became de rigeur as middle management all but disappeared and my high school classmates’ fathers became “consultants;” i.e., unemployed.
In the 30+ years since Black Monday, October 19, 1987 – the day the stock market crashed and lost 22.5% of its value – the connection between employer and employee has become more tenuous and opportunistic. Black Monday triggered an economic downturn and both parasitic layoffs. Same thing in the Dot Com Bust, the Great Recession, and now the Covid19 era.
The flipside of knowing your employer doesn’t have your back and your employment at- will can be terminated at any moment, is a lack of loyalty to your employer. In other words, employees do not trust their employers will protect them, even though the employer needs the employees now more than ever to – just survive. Ironic isn’t it? I haven’t checked recent statistics, but GenX, Millennials, and GenZ are expected to change jobs 10-20 times in their adult working lives.
Enough with the History. Where’s this New Path?
I am not an at-will employee, nor do I breathe the rarified air of those with written contracts of employment for a specific period of time and who can only be terminated for cause. So, what am I? I am a traveler on the New Path.
Mark Carey, who has written on why at will employment is a bad rule and how it was invented by lawyer in 1877, puts his money where his mouth is. My employment is not terminable “at will,” it is terminable “for cause.” It means no one from my office has been laid off during the pandemic. We are all in this together and I have a vested interest in the success of my employer. It means if I do my job, my employer will have my back. In exchange, I’ve agreed to stay with my firm unless I have good reason to leave (i.e., reduction in pay, demotion). The Thirteenth Amendment prevents Mark from enforcing my side of the deal, but the trust engendered in his commitment to me as his employee engenders my reciprocal promise to stay.
Employers should seriously consider the current “relationship” they have with their employees. Employees are the backbone of each company and employers could not exist without them. Trust- that’s what employees want right now and presumptively have always wanted it. Now that the blinders are coming off due to Covid-19, employers must realize they cannot abuse employees and treat them like a number. There are currently Forty million plus (40,000,000) job terminations during this pandemic, this is not exactly what I would call building trust with your employees. These recently terminated employees (“Your Ex-Employees”), are real people of all races and backgrounds, with emotions, goals, financial issues just like you. If you give employees a real sense of security in their jobs, they will reword their employers tenfold- with #EmployeeTrust and increased EBITDA (aka profitability).
Employers- show your employees they can trust you at all times– that you got their backs in times of trouble. Here are a couple of suggestions:
Provide a termination for cause employment agreement-ignore your management lawyer’s advice not to follow this suggestion;
Make sure employees feel confident they will not get sick when they come back to work- give them everything they need and write if off on your PPP and SBA money you just received;
If employees want to work from home and/or the office, just let them- but remind them you do pay rent in an office they should use;
Buy them necessary computer gadgets to work remotely – anywhere;
Build a sense of a strong community experience amongst employees;
Immediately fire any employee, manager or not, who exhibits any discriminatory bias against anyone- this will deter the bad actors- as we are all in this together;
This list of perks employers can provide to develop and ensure employee trust is endless and specific to your company, but you get the main idea. Yes, employees need perks too!
If you would more information about this topic, please contact Carey & Associates P.C. at 203-255-4150 or email to firstname.lastname@example.org.