Fisher & Phillips has always been one of our top sources for employment law issues and we’re always happy to pass along their important insights. F&P’s summary of a recent the Equal Employment Opportunity Commission’s (EEOC) webinar regarding COVID-19 vaccines conveys helpful reminders for healthcare employers subject to CMS’s vaccination requirement. Apparently, vaccine disputes account for almost half of all the pandemic-related charges filed by employees since December, with about 20% of all lawsuits relating specifically to the vax. F&P expects this number to continue rising as cases make their way thought the investigation phase and become actual suits.
To recap some important points:
- Employers can lawfully ask workers about their vaccination status without violating anti-discrimination or HIPAA laws. The question, however, is limited to that which would elicit a yes-or-no answer from the employee.
- Although many employers are dropping the vaccine mandate as a condition of employment – assuming they are not otherwise required to enforce it, of course – they may still request vax status for business travel, attending conferences and even for accepting employees back into the workplace after their having worked remotely.
- The EEOC recommends that a religious accommodation exemption request be generally accepted as sincere unless there is an “objective basis to question it.” The original F&P article contains some useful links that delve more deeply into this exemption.
- Employers are required to offer a “reasonable” accommodation but not necessarily an across-the-board exemption. Employees can be subject to certain requirements, such as needing to attend meetings virtually instead of in-person, meeting additional safety guidelines (such as PPE) when on-site), and even regular COVID-19 testing.
- Teleworking (or working remotely) should be one of the reasonable accommodations in the employer’s arsenal as long as the employee can perform his/her job in that manner. Additionally, if the employee successfully worked remotely during the pandemic, for example, the EEOC encouraged employers to consider it an accommodation.
- Workers with COVID may qualify as having a disability under the Americans with Disabilities Act. Similar to any disability inquiry, employers must be careful when facing this possibility. F&P linked a good article expanding on this subject.
- The last point in the article touches on the possibility that an employee may be a caregiver for someone dealing with pandemic-related issues. This scenario is fraught with potential peril, so – as with all thorny employment related matters – contact your legal counsel for guidance.