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Employers using or thinking about using artificial intelligence (AI) to aid with workplace tasks received another reminder from the federal government that their actions will be closely scrutinized by the EEOC for possible employment discrimination violations. The federal agency released a technical assistance document on Thursday warning employers deploying AI to assist with hiring or employment-related actions that it will apply long-standing legal principles to today’s evolving environment in an effort to find possible Title VII violations. What are the five things you need to know about this latest development?
1. EEOC Confirms That Employers’ Use of AI Could Violate Workplace Law
The EEOC started by confirming its crystal-clear position in its technical assistance document: an improper application of AI could violate Title VII, the federal anti-discrimination law, when used for recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, or dismissal. The EEOC outlined four instances where the use of AI during the hiring process – and one example during an employment relationship – could trigger Title VII violations:
The agency didn’t say that these are the only types of workplace-related AI methods that could come under fire – or that these types of tools are inherently improper or unlawful. It did say, however, that preexisting agency regulations (the Uniform Guidelines on Employee Selection Procedures) that have been around for over four decades can apply to situations where employers use AI-fueled selection procedures in employment settings.
The agency said this is especially true in “disparate impact” situations – where employers may not intend to discriminate against anyone but deploy any sort of facially neutral process that ends up having a statistically significant negative impact on a certain protected class of workers.
2. “Four-Fifths Rule” Can Be Applied to AI Selections
The EEOC pointed out that employers can use the “four-fifths” rule as a general guideline to help determine whether an AI selection process has violated disparate impact standards (and we apologize in advance for the impending use of math). The test checks to see if a selection process is having a disparate impact on a certain group by comparing the selection rate of that group with the most “successful” selection rate. If it’s less than four-fifths of that selection rate, then you might be subject to a disparate impact challenge. If that sounds confusing to you, here is the example provided by the EEOC.
Assume your company is using an algorithm to grade a personality test to determine which applicants make it past a job screening process.
Note, however, that the EEOC said that this kind of analysis is merely a rule of thumb. It’s a rudimentary way to draw an initial inference about the selection processes. If you end up finding problematic numbers, it should prompt you to acquire additional information about the procedure in question, according to the EEOC, and isn’t necessarily indicative of a definitive Title VII violation. Similarly, just because your numbers clear the four-fifths hurdle doesn’t mean that the particular selection procedure is definitely lawful under Title VII. It can still be challenged by the agency or a plaintiff in a charge of discrimination.
3. EEOC Encourages Proactive Self-Audits
In a statement accompanying the release of the technical assistance document, EEOC Chair Charlotte Burrows said that employers should test all employment-related AI tools early and often to make sure they aren’t causing legal harm. This doesn’t mean just using the four-fifths rule, but also using a thorough auditing process involving a variety of potential examination methods on all AI functions. “I encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” she said.
But not mentioned by the EEOC: a reminder that you should approach any self-audit with the help of legal counsel. Not only can experienced legal counsel help guide you about the best methodologies to use and assist in interpreting the results of any audit, but using counsel can help cloak your actions under attorney-client privilege, potentially shielding certain results from discovery. This can be especially beneficial if you identify changes that need to be made to improve your process to minimize any unintentional impacts.
4. You’re On the Hook For Problems Caused by Your AI Vendors
The agency also noted quite clearly that you can’t duck your responsibilities by using a third party to deploy AI methods and then blaming them for any resulting discriminatory results. It said that you may still be responsible if the AI procedure discriminates on a basis prohibited by Title VII even if the decision-making tool was developed by an outside vendor.
“In addition,” said the EEOC, “employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.” This may include situations where you rely on the results of a selection procedure that an agent administers on your behalf.
The EEOC recommends that you may want to specifically ask any vendor you are considering to develop or administer an algorithmic decision-making tool whether steps have been taken to evaluate whether that tool might cause an adverse disparate impact. And it also recommends asking the vendor whether it relied on the four-fifths rule of thumb or whether it relied on a standard such as statistical significance that is often used by courts when examining employer actions for potential Title VII violations.
5. EEOC’s Guidance is Part of Bigger Trend
This technical assistance document is part of a bigger trend we’re seeing from federal agencies that are increasingly interested in the ways that AI may lead to employment law violations. Just last month, in fact, EEOC Chair Burrows teamed up with leaders from the Department of Justice, the Federal Trade Commission and the Consumer Financial Protection Bureau to announce that they would be scrutinizing potential employment-related biases that can arise from using AI and algorithms in the workplace.
And within the past year, the EEOC teamed up with the DOJ to release a pair of guidance documents warning that relying on AI to make staffing decisions might unintentionally lead to discriminatory employment practices, including disability bias, followed by the White House releasing its “Blueprint for an AI Bill of Rights” that aims to protect civil rights in the building, deployment, and governance of automated systems.
While none of these guidance documents create new legal standards or can be relied upon with the force of law like a statute or regulation, they do carry weight, may signal where the agencies are focusing their enforcement efforts, and can be cited to by agencies and plaintiffs’ attorneys as best practices that employers should follow. And states have gotten into the action too, with New York City’s law set to take effect in July, and a new bill advancing towards the Governor in California. And for that reason, you should take this guidance seriously and adapt your employment practices as necessary to stay up to speed with the pace of change that is rapidly unfolding before our eyes.
The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA).
You may now be thinking “What does that have to do with me? I pay my employees to work”. While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock. Before your internal defenses kick into high gear, let me provide a few examples of how this could occur:
Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office. To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). It is no wonder some of our focus on day-to-day compliance may have slipped.
My company’s mission is to be The Employer Advocate. Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur. Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance. We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.
The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees.
While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun. The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website. The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters.
Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach! Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.
Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.
Now that most states, the CDC, and OSHA have (or may soon) lift mask mandates for vaccinated workers, what is an employer to do about revealing an employee’s vaccination status? Under any relaxed masking guidance applicable to those who are fully vaccinated, customers, visitors, and co-workers are likely to draw their own conclusions about the vaccination status of everyone else in the workplace based upon whether or not they are wearing a mask. This addresses some of the legal and practical considerations for employers dealing with a partially vaccinated workforce and provides seven options for you to consider as you navigate this rapidly evolving area.
The Push to Unmask
Anxious to get back to normal after more than a year of mask mandates and social distancing, employers and employees are ready to do away with COVID-19 restrictions. Employees in certain industries (such as health care workers and educators) will likely continue to be required to mask up and social distance for the foreseeable future. However, other employers are developing various approaches and policies to lift masking requirements for employees (and others) who are fully vaccinated following new CDC and OSHA guidance.
Unmasking Employees Based On “Proof” of Vaccination
“Proof” of vaccination status is and will continue to be a significant consideration for employers when lifting mask mandates. Indeed, many employees are under the mistaken belief that an employer cannot ask vaccine status. However, per the guidance of the EEOC and other state agencies, you are permitted to request vaccination status. In California, local health authorities such as in Santa Clara County, have already mandated that businesses and government entities ascertain the vaccination status of all employees, independent contractors, and volunteers who are or will be working at a facility or worksite in the county.
Indeed, the inquiry may be required to determine which employees can and which employees cannot unmask. As an example, the Oregon Occupational Safety and Health Administration has already issued guidance that requires employers to “verify the vaccination status” of workers before permitting them to unmask. The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols, while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing. During COVID-19 inspections, OSHA will likely require employers to show how they have documented or “verified” vaccination status where employees are permitted to work under the relaxed COVID-19 safety protocols.
In determining an employee’s vaccine status, however, you must carefully limit any vaccine-related inquiry only to vaccination status and not inquire further, as such follow-up could improperly elicit information about an employee’s medical disability or other family medical information. Given that this is likely considered medical information, such information should be kept separate and confidential. Additionally, employers subject to the CCPA in states such as California need to understand that collecting vaccine-related information triggers the CCPA notice obligation.
Navigating State Limitations on Requiring Proof of Vaccination Status
Even though some federal, state, or local agencies may require or request that employers track employee vaccine status, there is a growing move in some states to protect vaccine status as confidential, private information. States are literally all over the map when it comes to vaccine disclosure or use of so called “vaccine passports.” Some states have adopted or are considering laws that promote vaccine passports. New York, for example, launched a COVID-19 vaccine passport initiative known as the Excelsior Pass that allows users to provide proof of vaccination where required. Other states, like Hawaii, have or are considering similar passport systems that promote vaccine disclosure to assist in safe reopening of business and public access.
However, many other states have gone in the opposite direction to protect individual privacy rights. These states have acted to restrict vaccine passports, with government entities and businesses barred from requiring proof of vaccinations. For example, Florida Governor Ron DeSantis recently signed into law a statute that prohibits the use of vaccine passports by government entities or businesses, stating that “in Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Other states such as Alabama, Arizona, Idaho, Indiana, Iowa, Georgia, South Carolina, South Dakota, Texas, and Wyoming have also restricted vaccine passports or requirements.
Arkansas and Montana have taken a more aggressive approach to address individuals’ privacy concerns and limit disclosure of vaccination status. Governor Hutchinson signed into law a statute that prevents state and local government entities from requiring proof of vaccinations as a condition of employment or to access goods and services. The law provides some exceptions for state-owned medical facilities. Montana Governor Gianforte has signed into law a statute that provides even greater protections for the unvaccinated, generally prohibiting employers from requiring any of the current vaccinations.
Given the fluidity in this area, you should remain mindful of the need to monitor these developments and check with counsel before implementing any vaccine-tracking policies.
Additional Landmines if Fully Vaccinated Employees Unmask
Aside from the spate of state and local government restrictions and mandates, employers face other potential legal landmines and practical problems when tracking and/or disclosing an employee’s vaccination status. As mentioned above, you should consider the legal privacy considerations in requesting and maintaining the vaccination status of employees.
As employers move to allow fully vaccinated workers to unmask employees, there will likely be legal, privacy, and employee morale issues related to any express or perceived disclosure of employee vaccination status. Indeed, even without an explicit disclosure, others will likely be able to decipher the vaccination status of employees. While employees are choosing to voluntarily disclose their vaccination status to their co-workers, you should not adopt such a casual attitude. You should consider the ramifications of disclosure of vaccine status without employee consent or as a result of a “company policy” or practice. Such practices could potentially give rise to exposure in areas of breach of confidentiality, privacy, discrimination, retaliation, and more.
Company disclosure of vaccine status may also inadvertently expose employees with legitimate disability issues or religious objections related to the vaccine. Employee morale could be compromised if employees believe they are being pitted against each other due to their vaccine status, especially if the company is somehow involved in the disclosures. Additionally, a policy of company-wide disclosure might even boomerang, potentially discouraging employees who do not want to be ridiculed or harassed by co-workers who are opposed to the vaccination.
What Should Employers Do? 7 Options to Address a Partially Vaccinated Workforce
How to relax restrictions for those who are fully vaccinated while maintaining confidentiality and a safe workplace for all? How to balance the possible exposure and potential federal and state safety agency fines if you don’t get it right? While there are rarely clear answers, and legal liabilities remain unclear, below are some options employers have been adopting to deal with the dilemma of the partially vaccinated workforce.
Each of these options come with some level of risk. You should explore the various paths available to you with your legal counsel before adopting any of them, especially in light of rapidly changing state and local laws in this area. Also, note that every option in which some employees are masked and some are unmasked includes the risk of employee conflict or harassment issues. This risk should be evaluated and addressed up front through training, ongoing communications emphasizing the importance of mutual respect in the workplace, adoption of written policies and procedures, and effective management oversight.
The EEOC kicked off the unofficial start of summer with a bang by clearing the way for employers to offer their employees incentives to get the COVID-19 vaccine in new guidance released on the eve of the Memorial Day weekend. The May 28 updates to the agency’s COVID-19 Technical Assistance guidance now provides employers with two clear options, drawing a key distinction based on who administers the shot:
Regardless of which path you travel, there are still hoops to jump through if you want to provide vaccine incentives – providing accommodations, ensuring confidentiality, etc. – but you now have a clear direction to take to encourage your workers towards vaccination. What do you need to know about this critical update?
Why Was This Guidance Necessary?
Before we take a deeper dive into discussing the options and other considerations, some employers may be wondering why this guidance was even necessary. Couldn’t you just offer some cash or PTO or some other reward to induce employee behavior without concern about the legal ramifications?
The main sticking point troubling employers for months concerned wellness program rules. Historically, the EEOC has indicated it didn’t want employers to force employees to make medical-related decisions through the use of incentives. Until this latest guidance, the EEOC believed that too significant of an incentive could coerce employees to participate, thus leading to legal violations if employees are “forced” to disclose protected medical information to gain the incentive. Through rules, guidance, and federal litigation, the EEOC has taken steps to ensure that any employment decisions in this regard were genuinely voluntary.
Earlier this year, the EEOC issued a proposed rule expressly permitting only de minimis incentives as passing muster under participatory wellness programs. The proposed rule contained language referring to a permissible incentive as a “water bottle” or something of equivalent value. However, the Biden administration withdrew the proposed rule under a regulatory freeze typically seen when new leadership takes charge at the White House. The proposed rule is still pending review and it is unclear when or what form it may re-emerge. Against the backdrop of this uncertainty, employers have been attempting to navigate the thorny path of vaccine incentives, concerned that offering robust incentives could bring about a higher legal risk. At the urging of business groups seeking clarity on the matter, the EEOC finally heeded the call and provided the certainty that employers have been craving.
Option 1: Unlimited Incentives
Under the first option, you are seemingly permitted to provide unlimited incentives to your workforce so long as your employees voluntarily provide you with documentation or other confirmation they received the COVID-19 vaccine, and they received the vaccination on their own from a third-party provider that is not an “agent” of your organization. The EEOC describes such third parties as pharmacies, public health departments, or other health care providers in the community.
Option 2: Restricted Incentives
On the other hand, if employees are voluntarily vaccinated by you or your “agent,” you can offer only incentives that are “not so substantial as to be coercive.” Which leads to two questions: what is an “agent,” and how substantial is “substantial”?
Definition of “Agent” and How to Avoid This Designation
Definition of “Substantial” and How to Avoid Violations
Whichever path you take, there are several other considerations to keep in mind when offering vaccine incentives based on voluntary inoculations.
Some employees may have legitimate medical or religious reasons not to get vaccinated, and failure to provide them with the same types of incentives could lead to claims under the Americans with Disabilities Act (ADA) or Title VII. You will need to consider offering alternative means by which an employee can earn an incentive if they cannot be vaccinated due to a disability or sincerely held religious belief. Alternative ways to earn the incentive might be watching a workplace COVID-19 safety video or reviewing CDC literature on mitigating the spread of COVID-19 in the workforce.
Once you gather information from employees about whether they have been vaccinated or not, you must maintain confidentiality. You should maintain the records as you would any other medical-related documentation (in a separate file, accessible to only those who need to know, etc.) and comply with all other state-specific privacy rules (such as in California).
While you can offer an incentive to employees to provide documentation or other confirmation from a third party not acting on your behalf that their family members have been vaccinated, the EEOC confirmed that you may not offer incentives to your employees in return for their family members getting vaccinated by your organization or your agent. This would be considered a violation of the Genetic Information Nondiscrimination Act (GINA) Title II health and genetic services provision. Asking pre-screening medical questions would lead to you receiving genetic information in the form of family medical history of the employee, and GINA regulations prohibit employers from providing incentives in exchange for genetic information. However, you can still offer an employee’s family member the opportunity to be vaccinated by your organization or your agent if you take certain steps to ensure GINA compliance.
Possible Incentives to Consider
If you are now considering what kind of incentives to offer your workforce in light of this new guidance, you might find comfort knowing that employers’ two most common incentive options include cash/gifts (38%) and paid time off (30%). This is according to an FP Flash Survey conducted earlier this year, which found that more than one in five employers were providing vaccine incentives. That number is bound to rise given that close to half of all respondents (43%) said they were unsure about whether to offer some form of incentive, many commenting that the then-current legal uncertainty fueled their hesitancy.
Declaring that the state is “no longer in a state of emergency,” Florida Governor Ron DeSantis signed a bill on Monday, May 3rd, banning vaccine passports while issuing two executive orders immediately suspending and invalidating local government COVID-19 restrictions, including mask mandates. But the news doesn’t necessarily mean you should rush to ease up on your facemask requirements for workers or visitors, nor impact your decision to mandate vaccines for your workers. Below is a summary of the implications for Florida businesses.
Vaccine Passports Banned
As the vaccine rollout progresses, businesses and employers nationwide have been wondering if a “vaccine passport” – an official document certifying that an individual has been vaccinated against COVID-19 – can lead to a path back to normalcy. A Florida law now prohibits businesses operating in Florida from implementing those measures with respect to customers. The new law does not come as a surprise to most Floridians. On April 2, Governor DeSantis signed Executive Order 21-81 prohibiting vaccine passports. This new law, however, solidifies the ban and provides more guidance for businesses.
Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business. Licensed health care providers are exempt from this provision.
The law also provides that educational institutions, including both public and private schools, cannot require students or residents to provide documentation certifying that they received the COVID-19 vaccine or have recovered from the virus.
Importantly, the law does not prohibit private businesses from requiring that their own employees show proof of vaccination or certification that they recovered from the virus. Of note, recent guidance from the Equal Employment Opportunity Commission clarifies that it is generally permissible for employers to ask employees about whether they have been vaccinated, but employers should avoid further inquiries.
Further, the new law permits covered entities to continue to use screening protocols (such as temperature checks) in accordance with state or federal law to protect public health.
Governor Eliminates Current Local Restrictions After Florida Surgeon General Discourages Masks
On April 29, Florida State Surgeon General Dr. Scott Rivkees issued a Public Health Advisory rescinding prior public health advisories. Notably, the advisory states that fully vaccinated people should no longer be advised to wear face coverings or avoid social and recreational gatherings except in “limited circumstances.” Those limited circumstances are not defined, but the advisory appears to cover masking both indoors and outdoors.
Noticeably, the Surgeon General’s advisory is less restrictive than CDC guidance. Although the CDC recently announced that fully vaccinated people can forego masks in certain situations (for example, if they are indoors with other vaccinated people, indoors with unvaccinated people from the same household, or outdoors in spaces that are not crowded), the CDC generally recommends that fully vaccinated people continue to wear masks or face coverings in other scenarios.
To follow the Surgeon General’s advisory, Governor DeSantis issued a pair of executive orders on May 3 suspending and invalidating local government COVID-19 restrictions, including mask mandates. These orders effectively eliminate all existing coronavirus-related restrictions imposed by local governments. This means that local orders requiring, among other things, masks, sanitizing, and capacity limits are no longer effective. The orders do not affect restrictions issued by school districts.
Noticeably, the governor’s orders only prohibit local governments from issuing and enforcing COVID-19 restrictions using their emergency procedures. They specifically allow local governments to enact ordinances under regular enactment procedures. Thus, it is possible that local governments will counter the governor’s orders by enacting ordinances continuing to require such measures as masking and distancing.
However, the state’s guidance does not mean that private businesses cannot – or should not – enforce their own policies. The orders only prohibit local governments from issuing and enforcing restrictions on individuals or businesses using emergency powers. Local governments may still enact such procedures using regular procedures. Businesses can still generally enforce their own measures, including mask mandates, if they choose to.
What Should Employers Do Now?
Pushing forward to a new normal, Florida employers should be aware of how to proceed. Despite the state’s guidance, you should continue to enforce safety measures.
Florida recently passed a new COVID-19 liability protection law for businesses. Although very favorable to businesses, the law requires that businesses make a “good faith effort to substantially comply with authoritative or controlling government-issued health standards” to gain its protection. If there are different sources of guidance in effect, a business may follow any of them. This means that although they are different, a business can likely be protected from liability by following either Florida or CDC guidance. However, an employer may have stronger defenses and be able to undercut possible claims earlier by following CDC guidance, which takes a more conservative approach than current Florida guidance.
Further, OSHA requires that employers maintain a workplace free of recognized hazards. COVID-19 is such a recognized hazard. By not following CDC guidance, a Florida employer may open themselves to exposure under OSHA’s General Duty Clause, even in the absence of a state mandate.
Employers should also consider the business realities of having unmasked employees. Among other things, customers and vendors may not feel comfortable entering your business if they see employees unmasked, even if they are vaccinated.
Finally, because the Surgeon General’s recommendations only apply to fully vaccinated people, your business may have an inconsistent patchwork of some employees wearing masks while others are not. This may result in a situation where different standards apply to different employees depending on their vaccination status. Employers should avoid this, as OSHA has issued guidance stating that businesses should not treat unvaccinated employees differently than vaccinated employees. Additionally, inconsistency among employees wearing masks may inadvertently reveal who is and is not vaccinated, which may be disruptive and may unintentionally single out employees who do not get the vaccine, including for medical or religious reasons.
Now that the country is on course to see all adult Americans eligible for COVID-19 vaccination in a matter of days, and an increasing number of employees are returning to the workplace, vaccination status is likely to be an increasingly common topic over the coming weeks and months. Which leads to these inevitable questions: when and how can employers ask their workers whether they’ve been vaccinated without getting into hot water? Whether it’s an innocent question asked while trying to make conversation or an inquiry posed to determine whether someone can return to normal duties, you need to understand your legal rights and obligations regarding this serious topic. Missteps can easily lead to legal complications.
A Simple Vaccine Question is Okay, But Be Wary of Going Further
The Equal Employment Opportunity Commission has indicated in recent guidance that it is generally permissible for employers to ask employees about COVID-19 vaccination status. That’s because this simple question alone is not likely to elicit information from the employee about possible medical conditions, an inquiry that otherwise would invoke federal or state disability laws.
And in many cases, the answer to that question alone may be all you really need. If you don’t really need to know anything beyond a simple “yes” or “no” to the question of whether they have been vaccinated – and in most cases, you won’t – the EEOC suggests warning employees not to provide any other medical information in response to your question to make sure you don’t inadvertently receive more information than you want.
If you require proof of vaccination, you should ask the employee to provide documentation from the immunization source showing the date(s) the vaccine was administered. To avoid potential legal issues related to this process, you should affirmatively inform employees that they do not need to provide any additional medical or family history information. The documentation you receive should be treated as a confidential medical record.
But issues could arise if you venture further than asking this simple question. Asking follow-up questions could trigger obligations under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) depending on a variety of factors, so you need to tread cautiously if you take the questions any further.
Going Further with Your Inquiries
That’s not to say you can’t or shouldn’t ask anything further than eliciting a simply yes-or-no answer. There may be circumstances where it is advisable or even necessary to ask more. In those cases, the key considerations relate to the kinds of questions posed and the kinds of responses provided. These are the situations that raise potential legal issues that will likely require you to confer with your lawyer.
Questions about why the employee isn’t vaccinated
If you need information about why the employee has not yet been vaccinated, you might end up eliciting information about the employee’s medical status. Therefore, you can only pose such questions if they are “job-related and consistent with business necessity.” As the EEOC has said, you meet this standard if you have a reasonable belief, based on objective evidence, that an employee who is not vaccinated would pose a direct threat to the health or safety of themselves or others. This can be a challenging and complicated hurdle to clear. You should coordinate with legal counsel to determine whether you can meet this standard in your situation.
If you are treating workers differently based on vaccination status – for example, not allowing them to participate in certain work activities, work in certain locations, interact with the public or other employees, etc. – and you have confirmed with counsel that you have a valid justification for doing so, you may need to ask additional questions to assist with an interactive process. It may be that you need to provide reasonable accommodations to those workers unable to be vaccinated due to underlying medical conditions or sincerely held religious justifications. Each situation will require a case-by-case, fact-specific analysis, and you should be prepared to engage in substantive interactive process discussions related to any accommodation requests.
Questions about how the vaccination process went
If your managers are asking follow-up questions to find out how the employees fared after vaccination – especially after the second dose of Moderna and Pfizer vaccines – you need to recognize that this can be a slippery slope. Such questions could reveal information related to disability status (see above) that you would otherwise not want to know about. Caution your managers to tread carefully when asking such questions, even if their intent is innocent, and train them to know what to do if they receive information that should lead to human resources involvement.
Questions to help with an employee leave program
It is always permissible for your managers to ask about the medical status of an employee in order to help administer an employee leave program that includes absences for vaccine side effects, whether due to federal or state law or due to company policy. As with any such inquiries about medical status, however, make sure your managers know that they need to keep the information confidential to protect the privacy of any medical records received, and to only ask questions that lead them to gather the type of information necessary.
What Steps Should You Take Right Now?
Federal and state anti-discrimination agencies have issued guidance for employers that want to require workers to get a COVID-19 vaccine—but at least one lawsuit has claimed that employers can’t mandate a vaccine that is approved only for emergency use. While this argument might not hold up in court, employers should be aware of the risks associated with a vaccine mandate.
When employees refuse a vaccine, the employer should address their concerns and explain the reasons why the company has adopted a mandatory vaccination policy. An open dialogue and education will be key, as will following FDA updates in this regard and consulting with legal counsel.
There are many reasons why an employee may be unwilling to receive a COVID-19 vaccine, and employers may need to explore reasonable accommodations, particularly with employees who have disability-related and religious objections to being vaccinated.
Distribution of COVID-19 vaccines has been issued under the Food and Drug Administration’s (FDA’s) Emergency Use Authorization (EUA) rather than the FDA’s usual processes. But the FDA has said that the vaccine has met its “rigorous, scientific standards for safety, effectiveness and manufacturing quality” and that “its known and potential benefits clearly outweigh its known and potential risks.”
An employee who recently filed a lawsuit challenging an employer’s vaccine mandate argued that the EUA states that people must have “the option to accept or refuse administration of the [vaccine]” and be informed “of the consequence, if any, of refusing administration of the [vaccine] and of the alternatives to the [vaccine] that are available and of their benefits and risks.”
Although the employee in the case works in the public sector, many employment relationships in the private sector are at-will, which means either the employer or the worker can terminate the employment for any lawful reason. An employer that mandates a vaccine may argue the consequence of refusing a vaccine is being fired.
“Consensus in the legal community has been that, at least in the private sector, employers may require at-will employees to be vaccinated, subject to accommodations that may be required for medical or religious reasons,” said Kevin Troutman, an attorney with Fisher Phillips in Houston, and Richard Meneghello, an attorney with Fisher Phillips in Portland, Ore.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that employers generally can mandate COVID-19 vaccinations. “The EEOC specifically addressed vaccinations that are authorized or approved by the FDA,” noted Anne-Marie Vercruysse Welch, an attorney with Clark Hill in Birmingham, Mich.
The California Department of Fair Employment and Housing (DFEH) also recently said that the Fair Employment and Housing Act (FEHA) generally allows employers to mandate vaccines that have been approved by the FDA. The DFEH specially noted that the FDA has authorized and recommended three COVID-19 vaccines—all of which have been authorized under an EUA.
But vaccine mandates may still be risky for employers. It is possible that employees who are terminated for refusing to receive a vaccine authorized by the FDA under an EUA could try to pursue claims for wrongful termination in violation of public policy. The viability of such claims will depend on applicable state law regarding a potential public policy exception to at-will employment and how courts—state and federal—construe the EUA wording.
The regulatory framework is still unclear and a number of states are considering legislation that would prohibit employers from requiring employees to receive a COVID-19 vaccine. If these bills become law, the uncertainty regarding the EUA issue will become moot in those states, at least as of the time the laws go into effect.
The EEOC issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
California’s guidance noted that the FEHA prohibits employers from discriminating against employees or job applicants based on a protected characteristic—such as age, race or sex—and requires employers to explore reasonable accommodations related to a worker’s disability or sincerely held religious beliefs.
“If an employee has a medical condition or sincerely held religious belief that would prevent them from being able to be vaccinated, their employer must go through the interactive process to determine if a reasonable accommodation is available,” Welch said. She recommended that employers have accommodation forms available to employees to begin the interactive process and document the steps the employer took to attempt to arrive at a reasonable accommodation.
Accommodations could take various forms, depending upon the employee’s job and setting. Employers may offer remote work, change the physical workspace, revise practices or provide a leave of absence. In each situation, the employer must determine whether an accommodation would enable the employee to safely perform the essential functions of their job.
Some employees might refuse to receive a vaccine for reasons that aren’t legally protected, such as a general distrust of vaccines. Employers need to be very thoughtful as they consider whether to mandate vaccines because employers may have to fire a material portion of their workforce who refuse to be vaccinated or allow some employees to ignore a company policy–which can lead to discrimination risks and employee morale issues.
“Most employers are encouraging vaccination rather than requiring it,” Welch observed.
Coburn recommended that employers focus on the following measures to encourage employees to receive a vaccination:
Employers that want to offer incentives should be mindful of wellness program limitations and offer alternative ways for employees who cannot get vaccinated to receive the incentives, Coburn noted.
Employers wanting to require workers to get a COVID-19 vaccination should be prepared to respond to workers’ concerns and make reasonable accommodations under federal and state law.
Mandating vaccinations could have benefits for employers and employees alike. Vaccinations will likely decrease the risk of spreading the virus in the workplace, reduce absenteeism, increase productivity and decrease employee health care costs. On the other hand, employees may react poorly to mandatory vaccination policies.
“Most employers are choosing to inform, educate and encourage their employees to consider the vaccine,” observed Katherine Dudley Helms, an attorney with Ogletree Deakins in Columbia, S.C. However, she noted, there may be industries where vaccination is critical and a mandatory approach makes sense.
“Even then, employees should be informed and educated as to why the business felt that approach was necessary,” she said. “If the employer has made the vaccine mandatory, it needs to be sure that it is ready to terminate or otherwise address employees who refuse and who are not entitled to a reasonable accommodation.”
Employers that require vaccinations may face discrimination claims if they deny accommodation requests based on medical or religious objections.
The Equal Employment Opportunity Commission (EEOC) issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.
Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to 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.”
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.
The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC.
Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said an employer will need to evaluate the employee’s job functions, whether there is an alternative job that the employee could do that would make vaccination less critical and how important it is to the employer’s operations that the employee be vaccinated.
Employers that mandate vaccines will have more issues to consider beyond providing reasonable accommodations. For instance, can an employer be held liable if a worker has an adverse reaction to the vaccine?
A severe allergic reaction to the vaccination is possible but rare, according to the U.S. Centers for Disease Control and Prevention (CDC).
“If an employer mandates vaccines, there is likely coverage for injury or illness under the employer’s workers’ compensation policy, but employers should check with their carriers,” Hechtkopf said. “If an employer merely encourages employees to obtain a vaccine, coverage under workers’ compensation policies may not be available.”
Employers must also be careful about collecting medical information. “If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof,” according to the CDC.
Additionally, Helms noted, a number of states are contemplating legislation that would prohibit businesses from making the COVID-19 vaccination mandatory. So employers will have to monitor the rules in each applicable location.
Employers that plan to require employees to get a vaccine should develop a written policy, Hechtkopf said.
If a significant portion of the workforce refuses to comply with a vaccine mandate, the employer will be put in the very difficult position of either adhering to the mandate and terminating the employees or deviating from the mandate for certain employees, noted Brett Coburn, an attorney with Alston & Bird in Atlanta. This can increase the risk of discrimination claims.
“Rather than implementing mandates that could lead to such difficult decisions, employers may wish to focus on steps they can take to encourage and incentivize employees to get vaccinated,” he said. For example, employers may want to:
Regardless of whether the policy is for mandatory or voluntary vaccinations, Helms said, employers should communicate clearly and often with the workforce as to why the company believes that vaccinations are important and let employees know that other COVID-19 precautions remain in place.
On January 29, 2021, the Occupational Safety and Health Administration (OSHA) published “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The Guidance incorporates much of the existing guidance from the Centers for Disease Control and Prevention (CDC), adds to guidance OSHA previously issued, and reflects strategies and practices familiar to many employers.
The Guidance, which is intended for non-healthcare employers, is not mandatory and does not have the same legal effect as an OSHA standard. Nevertheless, it provides insight into OSHA’s views and previews what the agency may include in an Emergency Temporary Standard (ETS), which the Biden administration has directed OSHA to consider and potentially implement by March 15, 2021.
OSHA’s Guidance provides all employers an important opportunity to review their COVID-19 prevention strategies. While most of the Guidance is not new, it provides a handful of new recommendations employers may want to consider adding to their current COVID-19 protocols. The new recommendations include:
1. Establish a system to communicate and provide training to all employees on the employer’s COVID-19 policies and establish an avenue for employees to report COVID-19-related concerns anonymously, without fear of retaliation. All such communications should be in languages employees understand and provided in a manner accessible to individuals with disabilities.
2. Make COVID-19 vaccines available at no cost to all eligible employees and provide information and training on the benefits and safety of vaccinations. While OSHA does not specify the information or training it suggests employers provide, the Guidance references CDC’s “Frequently Asked Questions About COVID-19 Vaccination.”
3. Don’t distinguish between workers who are vaccinated and those who are not. All vaccinated employees should continue to wear a mask, socially distance, and follow other COVID-19 protocols (e.g., exclusion from the workplace following COVID-19 exposure). This is necessary because, as OSHA explains, at this time, “there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”
4. Provide all workers with face coverings (i.e., cloth face coverings and surgical masks), unless their work task requires a respirator, at no cost.
OSHA recommends that employers provide all workers with face coverings, which include cloth face coverings and surgical masks, for use in the workplace with limited exception and unless their work tasks require a respirator (such as an N95 filtering facepiece respirator) or would present a hazard. OSHA also recommends that employers consider acquiring masks with clear coverings over the mouth for all workers to facilitate lip-reading for employees who are deaf or have a hearing deficit. OSHA further recommends that employers require all other individuals at the workplace over the age of two, such as visitors or customers, to wear face coverings. Where employees with disabilities cannot wear a certain type of face covering, employers should discuss the possibility of providing a reasonable accommodation using an interactive process. OSHA’s Guidance on reasonable accommodations for face covering requirements dovetails with guidance on reasonable accommodations previously provided by the Equal Employment Opportunity Commission (EEOC).
OSHA has explained in previous guidance that cloth face coverings are not personal protective equipment (PPE), but can be used as recommended by CDC as a preventive measure in an employer’s COVID-19 exposure control plan. The new Guidance acknowledges that cloth face coverings can reduce exposure for the person wearing the covering in some instances.
The rest of the Guidance reviews additional practices and protocols that OSHA suggests are necessary for an effective COVID-19 prevention program. These are as follows:
1. Assign a coordinator. OSHA recommends assigning a workplace coordinator to be responsible for COVID-19 issues. The coordinator should administer the COVID-19 prevention program on the employer’s behalf.
2. Conduct a hazard assessment. It is important for employers to identify where and how workers may be exposed to COVID-19 and implement responsive COVID-19 hazard controls. As OSHA points out, it is important to consult with employees, especially those who are in the trenches, when conducting the assessment to understand the realities of the workplace.
3. Identify a combination of measures that will prevent and limit the spread of COVID-19. OSHA provides a hierarchy of controls, prioritizing engineering controls that eliminate the COVID-19 hazard entirely, followed by administrative policies and PPE to protect workers from COVID-19 hazards. OSHA lists several commonly recognized measures that employers should take and provides details to assist employers to implement these measures effectively:
a. Separate and send home infected or potentially infected people from the workplace.
The first step in any workplace safety hazard assessment is to eliminate the hazard. In the case of COVID-19, that means removing infected or potentially infected people from the workplace. We recommend that employers communicate clear expectations to employees and adopt employee and visitor screening practices consistent with state and local requirements and recommendations.
OSHA explains that most employers will follow a symptom-based strategy for identifying, separating, and sending workers home. OSHA also recognizes that there are some circumstances where “employers may consider a COVID-19 test-based strategy.”
b. Implement physical distancing in all communal work areas.
OSHA explains that the “best way to protect individuals is to stay far enough away so as not to breathe in particles produced by an infected person.” Keeping 6 feet of distance is generally recommended, but it is “not a guarantee of safety, especially in enclosed spaces or those with poor ventilation.” To increase physical distance, it is often important to limit the number of people in one place at any given time and increase physical space between people. OSHA recommends numerous strategies that many employers have adopted over the past 10 months, including telework, flexible work hours, staggered shifts, delivery of remote services, limiting the size of meetings, and using visible cues to encouraging distancing, to name a few.
c. Install barriers where physical distancing cannot be maintained. OSHA recommends installing transparent shields or other solid barriers at fixed workstations where workers cannot maintain 6 feet from other people.
f. Use applicable PPE to protect workers from exposure. When other measures cannot be implemented or do not protect workers fully, the Guidance concludes that current OSHA standards require that employers provide PPE as a supplement to other controls. (As discussed above, OSHA maintains that cloth face coverings are not PPE.) The standards referenced in the Guidance include OSHA’s PPE and respiratory protection standards, 29 CFR 1910, Subpart I, which require employers, at a minimum, complete a written hazard assessment to determine the need for PPE and PPE appropriate for the hazard and corresponding procedures and training. Therefore, employers are responsible for determining when and what PPE is necessary to protect workers while in the workplace. If an employer determines that an employee must wear PPE while at work and to perform a job safely, the PPE should be provided at no cost to workers and maintained in a safe condition. In application to COVID-19, CDC has addressed when PPE is necessary for job tasks that require interactions with individuals known or suspected of having COVID-19 and, depending on the task, recommends PPE consisting of surgical masks or respirators, such as the filtering facepiece respirators (e.g., N95) or personal air purifying respirators (PAPRs), with eye and face protection (i.e., face shields), protective gowns, and gloves.
4. Consider protections for workers at higher risk for severe illness. Workers with disabilities may be entitled to “reasonable accommodations” under state and federal law to protect them from the risk of contracting COVID-19. The EEOC discusses reasonable accommodations that could offer protection to an employee who is at higher personal risk from COVID-19 due to a pre-existing disability in D.1 of its “What You Should Know About COVID-19 and the ADA and Rehabilitation Act.” OSHA encourages employers to consider whether workers who have an increased personal risk of contracting a severe respiratory illness from COVID-19 (including older adults and anyone who has a serious medical condition) can do some or all of their work at home or in a less densely occupied, better ventilated workplace.
5. Establish a system for communicating effectively with workers. Employers should ask workers to report, without fear of reprisal, symptoms of COVID-19, possible COVID-19 exposures, and possible COVID-19 hazards at work. Similarly, employers should establish channels for communicating important information to employees and, of course, communicate with workers in a language they understand.
6. Educate and train workers on COVID-19 policies and procedures. OSHA recommends that, along with training workers on company policies, employers educate workers about the basic facts about COVID-19, including how it is spread. This can go a long way to helping workers understand why proper distancing, appropriate face coverings, and other measures are important to protect them. OSHA outlines a number of other topics that should be included in worker and supervisor training. OSHA recommends that the training be in plain language that workers understand (including non-English languages and American Sign Language or other accessible communication methods, if applicable).
7. Instruct workers who are infected or potentially infected to stay home and isolate or quarantine. OSHA recommends attendance policies that are non-punitive.
8. Minimize the negative impact of quarantine and isolation on workers. OSHA recommends that, “when possible,” employers allow workers to telework, use paid sick leave, if available, or consider implementing paid leave. Employers that were covered under the Families First Coronavirus Response Act (FFCRA), generally employers with less than 500 employees, can still take advantage of tax credits in connection with voluntarily providing paid leave for COVID-19 related reasons through March 31, 2021.
9. Isolate and send home workers who show symptoms at work.
10. Perform enhanced cleaning and disinfection after people suspected or confirmed to have COVID-19 have been in the workplace. Employers should follow CDC’s guidance, which includes increasing air circulation, cleaning, and disinfection using an EPA-registered disinfectant identified for use against SARS-CoV-2, the virus that causes COVID-19. Employers are required to comply with existing OSHA standards, including those related to hazard communication and PPE appropriate for exposure to cleaning chemicals.
11. Provide guidance on screening and testing. Employers should follow state and local guidance for screening and viral testing (as distinguished from antibody testing) in workplaces. Employers that adopt workplace testing programs should inform workers of testing requirements. We recommend employers review recent guidance from the CDC placing a new emphasis on informed consent prior to testing.
12. Record and report COVID-19 infections and deaths as required by existing OSHA regulations. Employers must record work-related cases of COVID-19 illness on their Form 300 Logs if certain criteria are met. An employer has an obligation to record an employee’s COVID-19 illness if: the exposure is work-related, it results in a fatality, lost workdays, job restrictions or transfers, or otherwise requires medical treatment beyond first aid. Employers must report to OSHA a COVID-19 illness if an employee is admitted to the in-patient service of a hospital within 24 hours of a workplace exposure to COVID-19 or if an employee dies within 30 days of a workplace exposure to COVID-19. In the case of a hospitalization, an employer has 24 hours to report to OSHA from when the in-patient hospitalization occurs or when the employer learns of the hospitalization if the latter occurs later. In the case of a fatality, the employer must report a work-related COVID-19 death within 8 hours of the death or within 8 hours of learning of the employee’s death, if the death occurred within 30 days of the workplace exposure. These are fact-driven, often complicated, analyses and not every employee who tests positive for COVID-19 needs to be recorded on an employer’s OSHA 300 Log or reported to OSHA, for that matter.
13. Implement protections from retaliation and set up an anonymous process for workers to report COVID-19-related hazards. OSHA explains that the Occupational Safety and Health Act prohibits employers from discriminating against an employee for raising “a reasonable concern about infection control related to COVID-19.”
14. Comply with existing OSHA standards. OSHA reminds employers that all OSHA standards that apply to protecting workers from infection, including requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and requirements for employees to access medical and exposure records, remain in place. As mentioned above, while there is no OSHA standard specific to COVID-19, employers still have an obligation under the General Duty Clause to “provide a safe and healthful workplace that is free from recognized hazards that can cause serious physical harm or death.”
Employers should consider the following next steps:
The year 2020 highlighted the need for all of us to be agile, adjusting and responding as our world shifted, science evolved, and best practices for responding to COVID-19 developed and changed. This year is shaping up in a similar manner.
Article courtesy of Jackson Lewis