The COVID-19 pandemic is continuing to keep the US in its clutches. As new restrictions are mandated in response to a “second wave” of the coronavirus-induced illness, many businesses are bracing for a “second wave” of job cuts, leaving citizens worried about their employment status. Businesses that are forced to eliminate jobs have the extra worry of meeting legal requirements that change as the COVID-19 pandemic evolves—the terminations could be fought by employees who keep up with anti-discrimination laws.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and Rehabilitation Act of 1973, Title VII of the Civil Rights Act, Age Discrimination in Employment Act, and Genetic Information Nondiscrimination Act. These laws apply during the current pandemic without preventing employers from following the guidelines set forth by the Centers for Disease Control and Prevention (CDC) or those presented by state or local public health authorities employer response to COVID-19 for maintaining workplace safety.
On December 16, 2020, the EEOC published updated and expanded guidelines related to the COVID-19 pandemic and how it relates to federal equal employment opportunity (EEO) laws, including the implications of the new COVID-19 vaccines. The guidance addresses important concerns that employers have relative to the need for the vaccine and the EEO statutes. The EEOC itself has noted that employers will have to be particularly careful to comply with EEO laws concurrently with public health authority guidelines and directives.
While the EEOC has confirmed that employers’ mandatory vaccination policies will be permissible under federal law, it also has noted that those policies must have exceptions included for employees who require disability accommodations and religious accommodations. The exceptions will be required to apply only for employee removal (but not necessarily termination) from the workplace where such accommodations would present an undue burden for the employer—and the risk of getting COVID-19 does not automatically constitute an undue burden.
EEOC guidance clarifies that employers will be challenged to make lawful inquiries regarding disabilities and genetics in their efforts to ensure safe vaccination of employees, as the COVID-19 vaccine(s) and inquiries about vaccination status are not protected inquiries by any EEO law, even though any pre-screening questions for a vaccine often do qualify for protection under the ADA and may qualify for protection under GINA depending on the specific questions asked. Employers will need to seek out legal guidance relative to the evaluation of pre-screening questions for compliance and to track the continued viability of exceptions due to the direct COVID-19 threat as the pandemic waxes and wanes.
At Reeves Law, our experienced team of attorneys handles business litigation that includes employment/labor disputes. If your employer has terminated you or denied you appropriate accommodations to which you are entitled under EEO law, you should meet with a qualified business lawyer like Brad Reeves who is skilled in dealing with employment disputes. The professional Reeves Law team can help address your legal issues. Contact them today for a free consultation.