EEOC Clarifies When COVID-19 Condition May Be a “Disability” Under the ADA

The EEOC updated its COVID-19 Technical Assistance Guidance on December 14, 2021. The Guidance’s new Subpart N discusses when COVID-19 or a post-COVID condition may qualify as an ADA covered “disability” triggering the statute’s anti-discrimination and reasonable accommodation requirements. Key points include:

  • Not every COVID-19 related impairment constitutes a disability under the ADA, and the determination must be made on a case-by-case basis.
  • Like a person with any other medical condition, a person with a COVID-19 condition may have a “disability” under the ADA in one of three ways:
    1. The person has an “actual” disability: a physical or mental impairment that substantially limits a major life activity. This requires an individualized assessment of the effects of COVID-19 on the specific individual.
    2. The person has a “record of” a disability: a history or record of an actual disability; or
    3. The person is “regarded as” having a disability: the person is subject to an adverse action because of an actual or perceived impairment, unless the impairment is both transitory and minor.
  • Someone with COVID-19 who is asymptomatic or who has mild cold or flu-like symptoms that resolve in a matter of weeks is not substantially limited in a major life activity and thus does not have an “actual” disability under the ADA.
  • An individual with COVID-19 conditions that last or are expected to last for several months, such as ongoing neurological issues, breathing difficulties, heart palpitations, or gastrointestinal pains associated with “long COVID,” may be substantially limited in a major life activity and have an “actual” disability under the ADA. This requires an individualized assessment.
  • A person who has or had COVID-19 can have “record of” a disability if they have a history of symptoms that substantially limited one or more major life activities. Again, this requires an individualized assessment.
  • A person may be “regarded as” an individual with a disability under the ADA if they are subjected to an adverse employment action because they had non-minor symptoms of COVID-19 or minor symptoms that were expected to last more than six months.
  • Regardless of whether a person’s initial case of COVID-19 is itself an ADA covered “disability,” they may develop related health complications that qualify as disabilities under the ADA, such as heart inflammation, reduced brain function, or diabetes.
  • A person must establish they have “actual” or “record of” an ADA covered disability to be eligible for a reasonable accommodation from their employer, and the employer may ask for supporting medical documentation before granting any accommodation request.
  • Note that the EEOC’s COVID-19 Technical Assistance Guidance Subpart D confirms that an employer is not required to accommodate an employee without an ADA covered disability based on the disability-related needs of a family member or other person with whom they are associated.

The EEOC Technical Assistance guide includes additional details and examples. Determinations about whether an individual with a COVID-19 related condition has an ADA-covered disability or is entitled to a reasonable accommodation are fact-specific and must be made on a case-by-case basis. Contact your partners at Lake Effect for help with these complex situations.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Face Covering Emergency Order #5

Public Health Madison & Dane County has issued Face Covering Emergency Order #5. The new order is effective November 27, 2021. The only changes from the previous order (see Lake Effect’s summary of the previous orders here) are the following:

  • A new exemption for fully vaccinated persons in enclosed spaces with other fully vaccinated persons:

“When in an enclosed space with individuals who are fully vaccinated. Individuals are fully vaccinated two (2) weeks after their second dose in a 2-dose vaccine series for COVID-19 (such as Pfizer-BioNTech’s or Moderna’s vaccine) or two (2) weeks after their first dose in a single-dose vaccine series for COVID-19 (such as Johnson & Johnson’s Janssen vaccine).”

  • An extension of the face covering requirements until January 3, 2022.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

The Uncertain Fate of OSHA’s ETS Mandating Employer Vaccination Policies

What is the status of OSHA’s ETS? As Lake Effect previously reported, OSHA issued an Emergency Temporary Standard earlier this month requiring employers with 100 or more employees to implement mandatory vaccination or testing/masking policies. Read our prior blog for a full discussion of OSHA’s guidelines and requirements. In response to the ETS, employers across the country began to prepare policies in advance of the initial December deadlines.

Almost immediately, states, employers, and other groups across the country filed lawsuits challenging OSHA’s authority to issue the ETS. On November 5, 2021, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit temporarily halted the mandate. On November 12, 2021, the full 5th Circuit Court of Appeals issued an order barring OSHA from implementing and enforcing the ETS pending further court proceedings. In response, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” In the latest legal development, the Judicial Panel of Multidistrict Litigation consolidated at least 34 lawsuits across the country challenging the ETS (including the 5th Circuit case) before the 6th Circuit Court of Appeals based in Cincinnati. A three-judge panel from the 6th Circuit will be randomly assigned to hear all pending legal challenges to OSHA’s ETS.

What does this mean for employers? For now, OSHA will cease implementation and enforcement of the ETS, and prior December and January deadlines are no longer in effect pending further court action. However, this does not necessarily mean employers should delay or stop planning for vaccination policies. Keep in mind:

  • The Biden Administration and OSHA are confident in OSHA’s authority to issue workplace safety-related regulations, and they will vigorously defend the enforceability of the ETS.
  • Despite the 5th Circuit’s initial stay, the 6th Circuit could reject legal challenges and uphold OSHA’s authority to issue the ETS.
  • Regardless of the outcome of legal challenges to the ETS, employers of any size have the discretion to implement mandatory vaccination and/or testing/masking policies in their workplaces, as long as they comply with Title VII and ADA accommodation requirements.
  • Employers who are federal contractors or health care providers must comply with vaccination mandates under the Federal Contractor Mandate and CMS Medicate Omnibus Staff Vaccine Mandate Interim Final Rule. These mandates are unaffected by the current ETS litigation.

On A Related Note, You May Have Collective Bargaining Obligations. On November 10, 2021 (prior to consolidation of country-wide lawsuits challenging the ETS) the National Labor Relations Board (NLRB) Acting Associate General Counsel issued a memorandum outlining employers’ obligations to bargain with unions about issues related to the ETS. She confirmed that covered employers must bargain with unions about whether to implement a vaccine mandate or implement a vaccine and testing/masking policy. In addition, employers must bargain about the effects of the ETS policy on employees, including whether to provide leave to employees who test positive or how to discipline employees who refuse to comply with an ETS policy. Employers with represented employees should keep these obligations in mind as they consider and implement any vaccination policy.

Contact your partners at Lake Effect for help navigating vaccination issues in the workplace during this uncertain time. We will continue to closely monitor all legal developments relating to the ETS.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

OSHA Issues COVID-19 Vaccination and Testing Emergency Temporary Standard

On November 4, 2021, OSHA issued its Emergency Temporary Standard (ETS)  and a helpful FAQ detailing the federal mandatory vaccination and testing requirements for large employers across the country. The ETS is lengthy and detailed, but major highlights include the following:

  • Who: The mandatory vaccination and testing requirements apply to US employers with at least 100 employees firm or corporate-wide at any time the ETS is in effect (“covered employers”).
    • The ETS does not apply to workplaces already covered by Federal Workforce Task Force Guidance or federal contractors and subcontractors already covered under Executive Order 14042.
    • Even if their employer is covered, the ETS does not apply to employees who do not report to a workplace where other people are present, employees working from home, or employees who work exclusively outdoors.
  • When: The ETS is effective immediately upon its publication in the Federal Register on November 5, 2021. On or before December 5, 2021, employers must be in compliance with all ETS provisions (including requiring all unvaccinated employees to wear masks) other than weekly testing for employees who are not fully vaccinated. On or before January 4, 2022, employers must be in compliance with all ETS provisions, including requiring weekly testing for unvaccinated employees.
  • Key requirements: The ETS established minimum vaccination, vaccination verification, face covering, and testing requirements. Covered employers must do the following:
    • Develop, implement, and enforce a mandatory COVID-19 vaccination policy (or a policy allowing alternative weekly COVID-19 testing and masking). Provide written information about the ETS and related policies to all employees.
    • Determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
    • Provide employees reasonable time, including up to 4 hours of paid time, to receive vaccination doses, and reasonable time and paid sick leave to recover from possible side effects after each dose.
    • Require employees to receive the necessary shots to be fully vaccinated -- either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson – by January 4, 2022.
    • In the alternative, ensure that each employee who is not fully vaccinated by January 4, 2022 is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from work for a week or more). Covered employers are not required to pay for such testing under the ETS, although they may be required to do so under other applicable laws or collective bargaining agreements. The ETS lists permissible tests upon which covered employers and employees may rely.
    • Require employees to immediately provide notice if they receive a positive COVID-19 test or are diagnosed with COVID-19, and immediately remove such employees from the workplace, keeping them out until they meet criteria for returning to work.
    • Require every employee who is not fully vaccinated to wear a face covering when indoors or in a vehicle with another person for work purposes.
    • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them and work-related in-patient hospitalizations within 24 hours of learning about them.

For additional information about complying with these new detailed ETS requirements, contact your partners at Lake Effect.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Face Covering Emergency Order #4

Public Health Madison & Dane County has issued Face Covering Emergency Order #4. The new order is effective November 5, 2021. The only change from the previous order (see Lake Effect’s summary of the previous orders here) is to extend the face covering requirements until November 27, 2021. At this time, PHMDC plans to let its face covering requirements expire as of 12:01 a.m. on November 27 and not issue additional face covering orders.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Provides Additional Guidance on Religious Objections to Vaccine Mandates

On October 25, 2021, the EEOC updated its COVID-19 Technical Assistance to specifically address religious objections to employer vaccine mandates. The update provides employers with additional guidance regarding their Title VII obligation to accommodate employees who request exceptions to vaccination requirements based upon religious beliefs. Key updates in Section L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates include the following:

  • Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement based upon a “sincerely held religious belief.” Employers should inform employees about proper procedures for requesting such an exception, and employees need not use any “magic words” to express the request.
  • An employer should normally assume a request for religious accommodation is based upon a sincerely held religious belief. However, if there is an objective basis for questioning the religious nature or sincerity of an employee’s belief, an employer may seek additional information. An employee who fails to cooperate with a reasonable request for additional information jeopardizes a later claim that they were improperly denied an accommodation.
  • Title VII protects nontraditional religious beliefs, but it does not protect social, political, or economic views or personal preferences. Objections to COVID-19 vaccination requirements that are based on these views or nonreligious concerns about the possible effects of the vaccine do not qualify as “religious beliefs” under Title VII.
  • An employer may consider factors bearing on an employee’s credibility when assessing the sincerity of the employee’s stated religious belief, including the consistency of the employee’s prior actions, the timing of a request, etc. The employer may also ask for an explanation of how the employee’s religious belief conflicts with the employer’s vaccination requirement.
  • If an employer shows it is unable to reasonably accommodate an employee’s religious beliefs without suffering “undue hardship,” it is not obligated to provide the accommodation under Title VII. Requiring the employer to bear more than a “de minimis” cost constitutes an undue hardship. Such costs can include direct monetary costs, as well as an indirect burden on the employer’s business, including the risk of spreading COVID-19 to other employees or members of the public. Undue hardship must be assessed based upon specific facts of each situation.
  • An employer who grants some employees a religious accommodation from a vaccine requirement for religious reasons is not required to grant the same accommodation to all employees. The determination is made on a case-by-case basis. Furthermore, an employer need not grant the religious accommodation preferred by an employee if there is another that would resolve the conflict between the vaccination requirement and the religious belief.

If an exception is granted, employers should put in place measures to protect the unvaccinated employee, other employees, and the public, as noted in Section K.6 of the EEOC guidance.  Possible accommodations include wearing of face masks, frequent COVID-19 testing, change in work location or duties.

Employers who receive employee requests for exceptions to vaccination requirements based upon religious beliefs should work closely with HR and legal counsel to assess their accommodation obligations under Title VII.

Lake Effect continues to monitor important legal and HR developments, including COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Face Covering Emergency Order #3

Public Health Madison & Dane County has issued Face Covering Emergency Order #3. The new order is effective October 8, 2021. The only change from the previous order (see Lake Effect’s summary of the previous orders here) is to extend the face covering requirements through November 5, 2021.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Face Covering Emergency Order

Public Health Madison & Dane County (PHMDC) has issued a new Public Health Order, effective August 19, 2021 through September 16, 2021. The new order requires individuals to wear face masks indoors, employers to develop a policy providing and requiring face masks, and organizations to post a sign mandating face masks indoors.

To address the rise in positive COVID cases, individuals age two years and older must wear face masks when in an enclosed space in Dane County with people outside their household, including while using public transportation. PHMDC defines a face covering as:

a piece of cloth or other material that is worn to cover the nose and mouth completely. A face covering must be secured to the head with ties, ear loops, or elastic bands that go behind the head and must fit snuggly but comfortably against the side of the face. Cloth face coverings must be made with two or more layers of breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source). A face covering does not include bandanas, single layer neck gaiters, face shields, goggles, scarves, ski masks, balaclavas, shirt or sweater collars pulled up over the mouth and nose, or masks with slits, exhalation valves, or punctures. 

Limited exceptions to the mask requirement are allowed when an individual is eating and drinking, undergoing a service requires temporary removal of the mask (e.g. dental services), communicating with someone who is deaf or hard of hearing and who cannot communicate with a mask, swimming, following safety or security guidelines that require removal of the mask, and other similar circumstances. In addition, individuals with medical or mental health conditions that prevent them from wearing face masks are exempt from the requirement. When addressing such exemptions, employers should put in place other safety precautions to protect the health and safety of employees, customers, and other members of the public .

Employers must develop a written protective measure policy and procedure that provides employees with face masks and requires face masks indoors to comply with the order.

Employers must also post in visible locations signs requiring masks indoors. Employers may use PHMDC’s sign or develop their own.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

CDC Issues Updated Guidance on COVID-19

The United States Centers for Disease Control and Prevention (CDC) held a telebriefing (transcript to be uploaded when available) today at 2:00 p.m. CST to provide updated guidance on the COVID-19 pandemic in light of the prevalence of the highly contagious Delta variant. They key points of the CDC’s updated guidance include:

  • New data shows that the COVID-19 Delta variant behaves uniquely differently from the original Alpha variant. Therefore, some vaccinated people who contract the variant can be contagious and spread the disease.
  • The CDC continues to urge all Americans to get vaccinated, emphasizing that increasing the percentage of the population that is fully vaccinated is key to defeating COVID-19 variants.
  • The CDC’s guidance for unvaccinated individuals remains the same: continue masking until you are fully vaccinated.
  • The CDC further recommends that fully vaccinated individuals in areas of high or substantial COVID-19 transmission wear masks indoors and in public spaces.
  • The CDC notes that some fully vaccinated persons may choose to wear masks regardless of level of transmission in their area if they or members of their household are immunocompromised, at increased risk of severe disease, or not fully vaccinated.
  • The CDC recommends that everyone in K-12 school settings (including teachers, staff, students, and visitors) wear masks, regardless of vaccination status. The CDC continues to support in-person learning for all students.
  • Leaders in areas of high or substantial COVID-19 transmission should encourage vaccination and universal mask-wearing.

The CDC will continue to update its guidance as necessary in accordance with scientific data or other relevant developments.

Lake Effect is here to answer your questions about COVID-related guidance. We continue to closely monitor important legal and HR developments in this area, including updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive deeper into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

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