Tag Archives: ADA

Can an employer require its employees to take the COVID-19 vaccine?

In November, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine.   This is, obviously, wonderful news.  Under the current vaccine distribution plan for the State of Tennessee, residents and employees of nursing homes and long-term care facilities will receive the vaccine first, followed by first responders, low exposure healthcare workers and people with two (2) or more high-risk comorbidities. 

These vaccines will likely not be available to the general public for several months.  Many people will take the vaccine voluntarily.  But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment? 

The answer is likely yes, with some exceptions.  The EEOC has not yet issued any guidance on this issue.  However, the EEOC has previously issued guidance on whether employers can require all employees to take the flu vaccine.  With respect to the flu vaccine, the EEOC states that an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs. 

If the employee has an ADA disability that prevents the employee from taking the flu vaccine, the employer must analyze whether it can reasonably accommodate this disability without undue hardship.  For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others?  If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation.

An employee’s sincerely-held religious belief, practice or observance may also prevent that employee from taking a vaccine, whether it is the flu or the coronavirus vaccine.  For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer.  The EEOC goes on to state that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Given that COVID 19 appears to be more deadly to some and more contagious than the flu, the EEOC might change its position on the issue.  Certain industries may also have obligations to vaccinate employees, such as those employers in the healthcare industry.  For now, most employers should assume that they will not be able to require vaccinations for those employees who have an ADA disability or sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. 

Employers considering mandatory vaccination policies should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.   

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Coronavirus Concerns For Employers

Coronavirus concerns are international.  Universities are cancelling in-person classes.  Professional and collegiate sporting events are being cancelled.  Travel bans are in place.  In New York state, the National Guard was deployed in an effort to create a “containment zone” in New Rochelle.  But what can employers do when faced with issues created by the Coronavirus?

The EEOC weighed in on this issue last week, and provided some helpful guidance on how employers can manage Coronavirus concerns and still comply with the ADA.   I have summarized the EEOC’s answers to 3 key questions below.

In an effort to protect their workforce, how much information may an employer request from an employee who calls in sick?

The EEOC stated that ADA-covered employers may ask the employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  This information must be maintained by the employer in a  confidential medical record in compliance with the ADA.  Furthermore, the EEOC stated that these inquiries are not disability related if Coronavirus is like the seasonal flu.  And, if the Coronavirus becomes more severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of Coronavirus poses a direct threat to the health and safety of other employees. 

Does the ADA allow employers to require employees to stay home if they have Coronavirus symptoms?

Yes.  Employees who become ill at work with flu-like symptoms should leave work and advising them to do so is not a disability-related action.  And, sending them home would be permitted if the illness were more severe, as the individual would pose a direct threat to the health and safety of others. 

While not addressed by the EEOC, sending an employee who has a severe case of Coronavirus home may be required under OSHA’s “General Duty Clause”, which requires employers to furnish a “place of employment … free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”

The EEOC also confirmed that the  ADA allows employers to require a doctor’s note certifying the employee’s fitness for duty when returning to work.  Again, this is not a disability-related inquiry, and if the illness is severe, the inquiry would still be justified to avoid a direct threat.

The EEOC’s Guidance does not address whether an employee who is sent home must be paid, because that is not one of the laws the EEOC enforces. That answer depends on whether any work is performed and whether the employee is non-exempt or exempt under the FLSA.

Hourly employees are only paid for hours worked, so if an employee will be working from home he or she must be paid for the actual time worked.  If the hourly employee will not be working from home, he or she gets no pay while out of work.  An employer can allow the employee to use accrued PTO or sick leave. Salaried, exempt employees must be paid their normal weekly salary if the employee performs any work that week.

The Coronavirus is definitely cause for concern.  Employers who act responsibly and in accordance with the EEOC and other guidance, don’t have to add employment law concerns to the list.



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Not Every Job Restriction Pertains To An Essential Function

Earlier this month the Sixth Circuit U.S. Court of Appeals (the circuit that includes Tennessee) affirmed a jury’s verdict that Bemis Company discriminated against a former employee based on his disability when it terminated him based on his doctor’s restrictions.  The Plaintiff, Tony Gunter, was a press operator with the primary job duty of pressing graphics onto Huggies diapers.  Gunter injured his shoulder on the job.  The shoulder injury resulted in Gunter’s doctor imposing lifting restrictions on him.  Bemis terminated Gunter’s employment on the basis that his lifting restriction prevented him from performing the essential functions of his job.

At trial several witnesses testified that even with the lifting restriction Gunter could perform the essential functions of his press operator position.  In fact, Gunter’s co-worker’s testified that they regularly helped one another lift heavy objects, and thus the lifting restrictions would not impact Gunter’s ability to do his job.

Based on this testimony and other evidence the jury found that Bemis discriminated against Gunter based on his disability when it terminated his employment.  The jury awarded Gunter almost $600,000 in damages, but the Court of Appeals held that the front pay portion of that award needed to be recalculated.

Employers must remember that if an employment decision is based on an employee’s job restrictions,  those restrictions must prevent the employee from performing the essential functions of his or her job, even with a reasonable accommodation.  And remember, just because the job description says it is an essential function, that may not be the case.  Review the job description and make sure that the actual job duties are consistent with it before you make the decision.  The failure to do so could prove very costly.

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Is Regular Attendance Always An Essential Job Function?

Most of you just read the headline and probably answered “of course”.  But a recent decision by the Sixth Circuit Court of Appeals ( the federal court of appeals that has jurisdiction over Tennessee federal courts), shows that the answer is not always that certain.

In Hostettler v. College of Wooster the plaintiff, a full time HR Generalist, was seeking a part-time work schedule following the birth of her child.  When the plaintiff was unable to return to work on a full-time basis because she was recovering from post-partum depression and separation anxiety, the college fired her.  The plaintiff sued under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act and Ohio statutory law.  The district court granted summary judgment to the college on all of Plaintiff’s claims.  The district court decided that Hostettler could not make out a prima facie case under the ADA because she could not meet an essential function of the position, full time work, and was thus not qualified for the job.

On appeal the Sixth Circuit reversed the decision because it found that genuine factual disputes existed on material issues in the case.  Several facts were key to the Sixth Circuit’s decision.  One of Hostettler’s colleagues stated in a sworn declaration that she believed that Ms. Hostettler could do much of her work from home and that working from home was a common practice in the department.  The colleague also stated that Ms. Hostettler was replying to work emails in the evenings when she was working a modified schedule prior to her termination.  The colleague further stated that while Ms. Hostettler was on a modified schedule she was not aware of any assignments that Ms. Hostettler failed to complete.

Another key fact was that on Ms. Hostettler’s performance evaluation that was completed shortly before she was fired she received no negative feedback.  To the contrary, the college stated that “Heidi is a great colleague and welcome addition to the HR team!”.  Given these facts, and others, the Sixth Circuit determined that summary judgment was not appropriate.

Importantly, the Sixth Circuit did not hold that regular attendance is not an essential job function.  In fact, in the 2015 decision of EEOC v. Ford Motor Company the Sixth Circuit reaffirmed that regular attendance often is an essential function of the job.  But in Ms. Hostettler’s case there were factual disputes that precluded dismissing the case without a trial.

There are a few significant employer take always from this decision.  The college focused heavily on the fact that the job description stated that regular attendance is an essential job function.  But the facts of the case were inconsistent with that statement.  So make sure your job descriptions are accurate.  Additionally, just because your job description says one thing, if the facts pertaining to that employee are inconsistent with the job description, don’t let the job description drive your decision.

Finally, the plaintiff was fired after receiving a glowing performance evaluation.  Anytime you look to fire an employee for performance based reasons make sure you review their entire personnel file, including the most recent performance evaluation, before going forward with that decision.  If the performance evaluation is favorable, or other recent documents indicate acceptable or good job performance, reconsider whether termination is appropriate.  And as always, when in doubt, call your lawyer.

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Christian Care Center of Johnson City to Pay $90,000 to Settle ADA Case Filed by EEOC

The EEOC has the power to, and will,  sue employers who it believes have violated the laws it enforces.  It recently sued the Christian Care Center of Johnson City, Tennessee for disability discrimination based on the Center’s firing of an HIV positive LPN.  The case settled for $90,ooo.  You can read more about it in the EEOC Press Release which is linked below.


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You mean I can reasonably accomodate that?

Employers often struggle with whether they can reasonably accomodate an employee or applicant’s disability.  Sometimes, the employer decides that the disability can’t be accomodated but does not engage  in the interactive reasonable accomodation process in reaching that decision.

Today’s post comes from Eric Meyer, an employment law attorney in Philadelphia.  Click on the link to learn how an employer’s failure to properly engage in the reasonable accomodation process resulted in a very expensive lawsuit and what steps all employers should take as part of that process.  http://www.theemployerhandbook.com/

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