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4 Virus ADA Questions Employers Want The EEOC To Tackle

By Anne Cullen · April 14, 2021, 7:01 PM EDT

A long-awaited update to the U.S. Equal Employment Opportunity Commission's guidance for balancing workplace virus safety with laws barring disability discrimination could be in the works. Employment lawyers say the business community is brimming with questions.

The agency, which is in charge of enforcing the Americans with Disabilities Act , among other anti-discrimination laws, has issued stacks of guidance on the virus since the pandemic took hold of the nation last year.

But its running bulletin advising employers on how to steer clear of disability bias while tackling pressing safety issues surrounding hygiene, masks, health screenings and vaccines has sat untouched for roughly four months, even as more workplaces reopen and millions in the U.S. get inoculated each day.

Experts say employers are starved for a refresh on topics like vaccination perk programs, bringing unvaccinated workers back into the office, and mandatory inoculations.

"These are all issues we're struggling with," said disability law expert Jonathan Mook of DiMuroGinsberg PC. "So I can see that the commission wants to take its time and consider matters, but it's time for it to come out with additional guidance."

The agency is aware that employers are clamoring for an update, as EEOC Commissioner Andrea Lucas acknowledged during a virtual event last week that the commission has been quiet on this subject since December.

She indicated she's eager to see the document refreshed too, sparking hope for stakeholders that the agency will soon publish new advice they can use to ensure workers with disabilities are treated equitably as tricky safety questions continue to arise.

As employers wait for the agency to further flesh out its ADA and COVID-19 blueprint, here are four of the top questions they'd like to see answered.

Which Vaccine Incentives Are Aboveboard?

Top business advocates and Republican lawmakers have pressed the agency to clarify to what extent employers can offer their workers perks to persuade them to get a COVID-19 vaccine.

The U.S. Chamber of Commerce and other industry groups led the charge in February, and the Republican ranking members of the House and Senate labor committees followed up with the same question in April after it went unanswered.

Experts say the legal boundaries of this type of program are top of mind for many stakeholders. "One of the most important areas that the EEOC should issue some guidance on are vaccination incentives," Mook said.

Earlier this year, the agency floated regulations that would've capped the incentives businesses can offer employees for joining corporate wellness programs.

Under the plan, employers would have been able to offer only "de minimis incentives," like a water bottle or a gift card of modest value, to draw workers into company-sponsored health initiatives that would require them to hand over medical information.

Management-side attorneys worried that the limits would also cap what employers can offer workers for getting the shot.

Their concerns about the regulations wound up as a moot point, as the EEOC shelved the measure in February, citing a regulatory freeze President Joe Biden inked on day one of his presidency aimed at halting the prior administration's eleventh-hour rulemakings.

While it wasn't a popular plan among management-side attorneys because of the potential impact on vaccination perk programs, its withdrawal leaves nothing for businesses to go by when figuring out what incentives would be legally aboveboard under the ADA.

FisherBroyles LLP's employment partner Amy Epstein Gluck said it's important that the agency fill the void, as she said this is the top question that employers are asking.

"Those regulations were withdrawn in January and we haven't had any new guidance since then," she said. "So it's really confusing for employers who want to know how not to violate the ADA."

Is COVID-19 a Disability?

Another hot topic is whether COVID-19 can be considered a disability under the ADA.

Although this question was put to the EEOC in the earliest days of the pandemic, the commission still hasn't cobbled together a guideline for evaluating whether an infected worker can be considered disabled under the law.

Early on in the crisis, the EEOC blamed the newness of it all as a reason it couldn't make that determination.

"This is a very new virus, and while medical experts are learning more about it, there is still much that is unknown," the agency said in a question and answer session in March 2020. "Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA."

An agency spokesperson recently told Law360 there's still no answer, but experts say it's high time that the commission shed some light on this issue.

"To the degree the EEOC could offer some guidance about when COVID-19 and its effects may rise to the level of a disability — with some examples and maybe going through the analysis that should be conducted — that would be helpful for the stakeholders," DeMuroGinsberg's Mook said.

The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities of such individual," which regulations clarify can include "walking, talking, seeing, hearing or learning, or operation of a major bodily function."

Mook said many attorneys have been telling their clients that an infection on its own, without any lingering effects or long-term complications, isn't a disability under the ADA. But for, say, COVID-19 long-haulers, Mook said the analysis is murkier.

Someone infected with the virus can experience debilitating symptoms, and those considered long-haulers may face lingering fatigue and respiratory problems for months, according to the Centers for Disease Control and Prevention.

Plus, Mook said, it's important for businesses and workers that don't have legal counsel on speed dial to have some guideposts as well, which is another reason EEOC input is a good idea.

Do FDA Rules Hinder Mandatory Vaccine Programs?

The EEOC's December update suggested that employers can mandate workers get the jab, but it made clear there are some significant caveats that businesses need to keep in mind, including the way the U.S. Food and Drug Administration authorized the COVID-19 vaccines for distribution.

All three of the vaccines that have been distributed in the U.S. — from Pfizer-BioNTech, Moderna and Johnson & Johnson-owned Janssen Pharmaceuticals — only have FDA clearance on an emergency basis, under a process called Emergency Use Authorization.

The FDA this week recommended a pause on administering the Johnson & Johnson shot because of blood clot complications reported in six women who received this vaccine, but the EUA remains intact.

This is a type of license different from the FDA's typical vaccine approval. The FDA's guidance on EUAs says recipients must be informed that they "have the option to accept or refuse the vaccine."

The EEOC cited this language when it laid out its own vaccine advice for employers but didn't take it any further, leaving businesses scratching their heads.

"All the EEOC does in the guidance is a nod to the EUA, but now that we're sitting here in April, we're not sure if this applies to private employers," said Jackson Lewis PC principal Sheri Giger, who co-heads the firm's disability, leave and management practice group.

"If it does apply to private employers," Giger added, "the EUA status basically includes the options for individuals to decline the vaccine, which takes the wind out of the sails for mandatory programs."

At least one lawsuit has been filed alleging an employer can't force workers to get inoculated with a vaccine approved only for emergency use.

While it's not clear if the arguments will hold water in court, experts said the commission needs to clarify the interplay between the EUA and mandatory vaccination programs so employers know the legal risks of requiring employees to get the shot.

"There's no direct address of whether an employer can mandate the COVID vaccine while it's subject to an EUA," FisherBroyles' Gluck said. "We're telling clients and employers that yeah, they can mandate the vaccine, but it would be nice to have some more direct guidance, especially for our more risk-averse clients."

Can Businesses Bar Unvaccinated Workers From Coming In?

Another big question circulating in the business community is whether employers can ban employees from coming on-site if they cannot get the vaccination because of a disability.

The EEOC's current guidance says that businesses can forbid unvaccinated workers from coming into the office if they "pose a direct threat to the health or safety of individuals in the workplace," which the law defines as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

While the risk of an unvaccinated person spreading the virus to co-workers and customers may seem like a shoo-in for the "direct threat" standard, experts say it's a high bar to meet.

Employers must take into account the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.

Even if an employer determines that someone who cannot get the shot due to a disability poses a direct threat at the worksite, agency guidance says the employer still can't bar them from coming in — or take any other action against that person, like firing them — if there's a potential arrangement that mitigates the risk, like telework or other safety precautions.

Experts say that with all the safety precautions many employers already have in place — having other workers get vaccinated and requiring everyone to wear masks and social distance — making a case for a direct threat is going to be difficult.

"What we don't know and what guidance would be helpful on is with all of the safety precautions that we're putting into place — the vaccine, the social distancing, the masking — are we ever going to be able to show a direct threat?" Giger said.

The agency has laid out the steps for analyzing whether an unvaccinated worker fits under this umbrella, but Gluck said fleshing out some potential real-life scenarios would go a long way.

"You can exclude an employee from the workplace if you can't provide a reasonable accommodation that would eliminate or reduce the direct threat," she said. "That leaves employers with a lot of discretion and a lot of questions."

"I think some examples would be really helpful, and it's just not there," Gluck said.

--Additional reporting by Vin Gurrieri and Alexis Shanes. Editing by Haylee Pearl.

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