By Glenn J. SmithHoward M. WexlerEphraim J. Pierre, and Bill S. Varade

Seyfarth Synopsis: The New Jersey Supreme Court held that a plaintiff need not plead an adverse employment action such as a termination or demotion to establish a prima facie case of failure to accommodate a disability under New Jersey’s Law Against Discrimination (“LAD”). An employer’s inaction, silence, or inadequate response to a reasonable accommodation request is sufficient. The Court also held that a plaintiff who recovers under New Jersey’s Workers’ Compensation Act for workplace injuries is not barred from suing under the LAD for damages related to workplace discrimination.

Is an adverse employment action a required element for a prima facie case of failure to accommodate under New Jersey’s Law Against Discrimination (“LAD”)?  In Richter v. Oakland Board of Education, the New Jersey Supreme Court said, no. The New Jersey Supreme Court also held that receipt of benefits under the New Jersey Workers’ Compensation Act (“WCA”) does not bar a plaintiff from bringing claims under the LAD for damages and injuries related to workplace discrimination, and thus permits recovery without showing of an intentional wrong.

Key Facts

The plaintiff, Ms. Richter, was a middle school teacher for the Oakland Board of Education (the “Board”). She is a Type-1 diabetic. During the 2012-13 school year, Ms. Richter was scheduled for a 1:05 PM lunch break on Tuesdays and Wednesdays. Believing that her blood sugar would run dangerously low on these days, Ms. Richter requested an earlier lunch break. Ms. Richter was told that the school would “look into it,” and ultimately told her that her schedule could not be changed. Rather, Ms. Richter was told to sit and down and have a snack if she did not feel well.

On March 5, 2013, Ms. Richter suffered a seizure and fainted in front of her students. This, of course, occurred on a day where she had a late lunch break. She hit her head on a lab table and the floor, causing excessive bleeding. Ms. Richter was hospitalized with serious injuries. Before this incident, Ms. Richter had not fainted while at work. She filed a claim under the WCA for her workplace injuries, and received over $28,700 for her medical expenses and temporary disability.

Two years later, on March 5, 2015, Ms. Richter brought a claim for failure to accommodate under the LAD. After two summary judgment motions and subsequent appeals, the matter came before the New Jersey Supreme Court.

No Adverse Action is Required for Failure to Accommodate Claims under the LAD

Under the LAD, employers have a duty to provide a reasonable accommodation to an employee with a disability unless it would impose an undue hardship on business operations. Here, Defendants argued that because Ms. Richter did not suffer an adverse employment action she could not sustain her claim. The Court highlighted two prior cases where it questioned whether an adverse action was necessary based on the LAD’s legislative intent.  Similarly, the Court found that federal courts interpreting the Americans with Disabilities Act (“ADA”) have held that an adverse action is not an element of a failure to accommodate claim under the ADA or otherwise held that refusing to make a reasonable accommodation was itself an adverse employment action.

The Court decided to resolve this ambiguity in favor of the LAD’s legislative intent to eradicate discrimination in the workplace. The Court explained that the wrongful act in a failure to accommodate claim is the employer’s failure to perform its duty of providing a reasonable accommodation. To require an adverse employment action would allow an employer to escape liability by simply refusing to accommodate an employee’s disability but taking no further adverse action while the employee presumably suffered, the Court reasoned. This result would violate the LAD’s legislative intent. Accordingly, the Court held that an employer’s “inaction, silence, or inadequate response to a reasonable accommodation request is an omission that can give rise to a cause of action” under the LAD.

A Successful Claim under the WCA does not Bar a Plaintiff’s Claim under the LAD

The Court also sought to harmonize the LAD with the WCA. The WCA provides employees with prompt relief for medical expenses for workplace injuries. Under the WCA’s exclusive remedy provision, an employee who recovers for workplace injuries under the WCA cannot further recover for the same injuries at common law, unless the injuries resulted from an intentional act. Here, Defendants argued that because Ms. Richter’s claim for benefits under the WCA was successful, she could not also recover under the LAD for her injuries. Defendants further argued that their failure to accommodate her condition was unintentional, and her LAD claim could not proceed under the intentional wrong exception to the WCA. The Court found neither argument persuasive.

The Court explained that the LAD and the WCA serve dovetailing but different purposes. The LAD serves a broad remedial purpose to root out discrimination in the workplace, while the WCA compensates employees for medical expenses and personal injuries resulting from workplace injuries.  Because the LAD was amended in 1990 to allow punitive damages and common law remedies for prevailing plaintiffs, the Court reasoned that the damages available under the LAD were to supplement other existing remedies under the WCA. As a result, the Court held that the laws could coexist and permit recovery under both for different corresponding injuries. Here, the Court explained that Ms. Richter’s pursuit of a failure to accommodate claim for a pre-existing disability “is not at cross purposes with the WCA’s prompt and sure remedies for medical expenses and ‘personal injury.’” Accordingly, the Court held that the WCA’s exclusive remedy provision did not attach to Ms. Richter’s LAD claim regardless of whether defendants acted intentionally.

Employer Takeaways

The Court’s decision lowers the bar for failure to accommodate claims by removing a potential defense based on a plaintiff’s failure to plead an adverse employment action. The Court specifically held that an employer’s “inaction, silence, or inadequate response to a reasonable accommodation request” is enough to support a failure to accommodate claim under the LAD. The Court’s decision highlights the importance of engaging in an interactive dialogue whenever employers are faced with an employee’s reasonable accommodation request. Additionally, employers may not use the WCA as a bar to recovery under the LAD if discrimination played a part in the underlying workplace injury.

Please contact your Seyfarth attorney with any questions you may have regarding obligations under the LAD.

Seyfarth Synopsis: Please join us, on Thursday, June 17, 2021, for a dynamic panel of specialists to discuss the top trends we’re seeing in transportation and the trickle-down effect to all businesses. The session will run from 10:30 a.m. to 12:00 p.m., Eastern.

Companies in every industry are feeling the effects of today’s transportation and logistics challenges and many of these difficulties are stemming from labor and employment issues. Topics to be included are:

  • Proposed Infrastructure Bill from the Biden Administration
  • Hiring issues including on demand hiring and organizing under NLRA or RLA
  • COVID-19 litigation and CDC workplace safety issues
  • Illinois’ BIPA and privacy laws – a 2021 update
  • Logistics disruptions and timely product delivery

Our speakers for this event include Ada Dolph, Partner, Matthew Gagnon, Partner, Patrick Joyce, Associate, Karla Sanchez, Partner, and Andrew Scroggins, Partner.

While there is no cost to attend, registration is required. REGISTER HERE

If you have any questions, please contact Julianne Holdsberg at jholdsberg@seyfarth.com and reference this event.

By Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, Adam R. YoungA. Scott Hecker, Ilana MoradyPatrick D. Joyce, Daniel R. Birnbaum, Matthew A. Sloan, and Craig B. Simonsen

Seyfarth SynopsisOn June 9, 2021, at the tail end of prepared remarks before the House Education and Labor Committee, Secretary of Labor Marty Walsh announced – not with a bang, but with a whimper – that OSHA would publish its long-anticipated COVID-19 emergency temporary standard (“ETS”) on June 10, and that the ETS would focus only on the health care industry.

When OSHA sent the ETS to the White House’s Office of Information and Regulatory Affairs on April 26, 2021 (more than a month after President Biden’s initial deadline for doing so), observers anticipated a broad rule, covering the full breadth of OSHA’s jurisdiction. Focusing solely on health care, OSHA’s June 10 ETS likely disappoints unions and worker advocates who continued to champion the ETS well after science – and CDC guidance – pointed to a lack of necessity. In addition to the actual ETS, OSHA has developed supplemental ETS-related resources, including a helpful flowchart to determine coverage.

ETS Requirements

For those employers who fall into covered categories, including hospitals, nursing homes, and assisted living facilities; emergency responders; home health care workers; and employees in ambulatory care settings where suspected or confirmed coronavirus patients are treated, the ETS requires:

  • Developing and implementing a COVID-19 plan, including worksite-specific hazard assessments, to mitigate virus spread;
  • Limiting and monitoring entry points, and screening and triaging all clients, patients, residents, delivery people and other visitors, and other non-employees entering the setting;
  • Developing and implementing policies and procedures to adhere to Standard and Transmission-Based Precautions in accordance with CDC’s “Guidelines for Isolation Precautions”;
  • Providing and ensuring employees wear facemasks, with certain exceptions. Under certain circumstances, N95 respirators or other personal protective equipment must be provided by the employer to employees. Where N95s are used, but not required, employers must follow the new mini respiratory protection program included as 29 CFR 1910.504 (yes, it’s actually called a “mini respiratory protection program”);
  • Following specific protocols when an aerosol-generating procedure is performed on a person with suspected or confirmed COVID-19;
  • Physical distancing, i.e., ensuring six feet of distance between workers where feasible. Where physical distance is not feasible, the employer must ensure that the employee is as far apart from all other people as feasible, and must install barriers in fixed work locations outside of direct-care areas;
  • Cleaning and disinfection;
  • Ventilation;
  • Employee screening and notification of COVID-19 exposure;
  • Training;
  • Recordkeeping; and
  • Reporting COVID-19 fatalities and hospitalizations.

The standard also requires covered employees to provide workers with paid time off to get vaccinated and to recover from side effects. Employees who have coronavirus or who may be contagious must work remotely or be separated from others, or they must be provided paid time off, up to $1,400 per week.

Employers must advise employees that employees cannot be retaliated against for exercising rights under the ETS, and employers must implement the ETS with no cost to employees.

In well-defined areas where there is no reasonable expectation that any person will be present with suspected or confirmed coronavirus, the ETS exempts fully vaccinated workers from its masking, distancing, and barrier provisions.

Updated Guidance for Non-Health Care Sectors

OSHA’s revised guidance covering non-health care workplaces focuses its risk mitigation protocols on unvaccinated workers. Referring to CDC guidance, OSHA notes that fully vaccinated individuals do not need not take all of the same precautions that unvaccinated people should. Further, OSHA advises that most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure, unless stricter state or local laws apply.

OSHA appears to have finally reached the conclusion that it cannot demonstrate the need and gravity necessary to warrant an all-industry ETS. But employers should expect the updated guidance to serve as fodder for additional citations under OSHA’s COVID-19 National Emphasis Program, including pursuant to the General Duty Clause of the OSH Act. Maintaining required protocols and following all applicable guidance – as well as any stricter state and local rules – remains paramount in the enforcement arena.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Lorie E. AlmonMeredith-Anne BergerAnne R. Dana, and Glenn J. Smith

Seyfarth Synopsis: With no fanfare or effective means of publication, New York adopted an emergency regulation, effective May 26, 2021, implementing the latest CDC guidance on face coverings, with certain key exceptions. Notably, face coverings are required for unvaccinated food service workers at all times, regardless of proximity from others. While employers have been expecting revised industry-specific guidance to incorporate the new social distancing and mask mandates, instead, on June 7, 2021, Governor Cuomo announced that upon reaching a 70% vaccination rate for adults state-wide, most restrictions currently in place will be lifted.

New York State recently published emergency regulations (66-3.1—66-3.5) regarding mandatory face coverings in the wake of COVID-19 and the State’s adoption of the CDC’s recent guidance, which we previously discussed here, allowing fully vaccinated individuals to go without a face covering under most circumstances. They also address non-essential gatherings and penalties.

The emergency regulations provide, in sum:

  • Individuals over age two and who are medically able must wear a face covering in a public place when not maintaining a social distance, unless the individual is fully vaccinated (i.e., 2+ weeks after the final dose of any COVID-19 vaccine), in which case a face covering is not required. Exceptions to this rule include: a pre-kindergarten to twelfth grade school, public transit, homeless shelter, correctional facility, nursing home, health care setting, or other setting where mask use is otherwise required by federal or state law or regulation.
  • Employees in any workplace who are not fully vaccinated must wear a face covering when “in direct contact with customers or members of the public, or when unable to maintain social distance.” Notably, employees of food service establishments who are not fully vaccinated must wear a face covering at all times while at the workplace. Businesses must provide such face coverings at no cost to employees.
  • Businesses and building owners may require all individuals who enter their premises to wear a face covering, and are entitled to deny admittance to any person who does not comply. Note, this particular provision is subject to conformance with the Americans with Disabilities Act, New York State, and New York City Human Rights Laws.
  • Businesses cannot deny services or discriminate against any individual on the basis that they choose to wear a mask for purposes of protection against COVID-19, but which is not designed to otherwise obscure the identity of the individual.
  • Non-essential gatherings are prohibited under certain circumstances, i.e., over capacity limitations provided by relevant Executive Orders or on sidewalks, streets or other public property within 100 feet of a food service establishment or a business holding a liquor license. Any non-essential gatherings must comply with social distancing protocols and cleaning and disinfection guidelines. This prohibition does not apply to essential businesses as defined by Empire State Development.
  • Fines for violation of the emergency regulations are $1,000 per violation, except for violating capacity limits on non-essential gatherings or for a business or individual who promotes a non-essential gathering, which has a maximum fine of $15,000.

While it was expected that New York’s industry-specific guidance would be updated to address the new mask and social distancing rules, it now appears that is unlikely. Instead, during a press conference on June 7, 2021, Governor Cuomo announced that “most remaining COVID restrictions will be lifted when 70% of adult New Yorkers have received at least one dose of the COVID vaccine.” At the time of the announcement, the percentage was at 68.6%.

The announcement included the following:

  • “The State’s New York Forward industry specific guidelines — including capacity restrictions, social distancing, cleaning and disinfection, health screening, and contact information for tracing — will become optional for retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops and personal care services, among other commercial settings. Large-scale event venues, pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings must continue to follow the State’s guidelines until more New Yorkers are vaccinated.”
  • Unvaccinated individuals will still be responsible for maintaining proper social distancing of six feet and wearing a mask. In addition, large-scale event venues, Pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and health care settings will be exempt from the restriction lift, and New York State’s existing COVID-19 health protocols will remain in effect. (Notably, the requirement that unvaccinated food service workers continue to mask at all times was not mentioned as a restriction that will remain in place, but this may have been an oversight).

It is also unclear whether the emergency regulations cited above are intended to work in tandem with the lifting of the industry-specific guidance upon reaching the 70% threshold, or will once again be amended in accordance with same. This likely depends on whether the rollback of the industry-specific guidance is effectuated through a broader lifting of the COVID-19 disaster emergency declaration.

Seyfarth will continue to track what has become a rather confusing lifting of restrictions across New York. Please contact your Seyfarth attorney with any questions you may have.

By Coby TurnerPatrick D. JoyceIlana MoradyAdam R. Young, and Elizabeth M. Levy

Seyfarth Synopsis: The California Occupational Safety & Health Standards Board (OSHSB) was supposed to consider changes to the COVID-19 Emergency Temporary Standard (ETS) on May 20, 2021. But after the CDC published a May 13, 2021 guidance saying that fully vaccinated individuals could resume pre-pandemic activities without masks, Cal/OSHA asked the OSHSB to delay its consideration of the proposed ETS revisions until Cal/OSHA could “revisit the proposed COVID-19 prevention emergency regulation in light of this new guidance.” Cal/OSHA has now published its new draft regulations, which appear to be more strict than the prior proposal. The OSHSB will consider the new proposal at its June 3, 2021, meeting.

Background

In the fast-paced and ever-changing environment of COVID-19 regulation, the story of Cal/OSHA’s ETS is becoming more and more convoluted. If you read our May 12, 2021, blog, you know that earlier this month Cal/OSHA published proposed revisions to its ETS. The proposed revisions were a significant move in the right direction, relaxing some of the more burdensome aspects of the ETS in light of the improving state of the pandemic. The OSHSB was scheduled to consider and vote upon the proposed revisions at its May 20, 2021 meeting.

But then, on the eve of the meeting, Cal/OSHA submitted a memorandum to the OSHSB asking that consideration of the proposed revisions be deferred. Cal/OSHA cited the CDC’s May 13, 2021 guidance allowing fully vaccinated individuals to forego masks in most situations, as well as the May 20, 2021 California Health & Human Services announcement that California plans to implement the updated CDC guidance starting June 15, 2021. The memorandum explained, “The Division is thus requesting that the Board not vote to approve the current proposal before it, and instead allow us to present a new proposal at a future meeting. The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.”

The new proposal has now been published (and here is a redline to the prior proposed changes), and the OSHSB is scheduled to consider it, and vote, at the upcoming June 3, 2021 meeting.

What Has Changed from the May 20 Proposal?

The revised proposal misses many of the most sought-after updates related to mask usage, and in fact appears stricter on many measures than the last proposal, despite relaxed measures recommended by the CDC. Changes from the earlier proposal include:

  • Employers cannot immediately eliminate physical distancing requirements for fully vaccinated worksites—they must keep these measures in place until at least July 31, 2021.
  • Employers would be immediately required to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work related (the previous iteration did not start this requirement until July 31, 2021).
  • Fully vaccinated workers who test positive for COVID-19 would still have to be excluded from work for 10 days after the positive test, even if they are asymptomatic.
  • After July 31, 2021, employers would have to provide respirators to all employees who are not fully vaccinated for voluntary use.
  • Employers would not be able to eliminate cleanable solid partitions in fully vaccinated worksites.

The revisions also include provisions aimed at maintaining mitigation measures for employees at “outdoor mega events,” which is an outdoor event with over 10,000 participants or spectators. Finally, OSHSB added a provision requiring employers to notify employee of the benefits of the COVID-19 vaccine, including that the vaccine has been effective at preventing serious illness or death (in addition to the information required in the prior proposal related to testing accessibility and proper respirator use).

The revisions do not require blanket vaccine-verification, of employees or third parties, along the lines of the onerous requirements we have seen in Oregon and Santa Clara, as many employers thought may be included.

But to be “fully vaccinated” for purposes of the limited changes in the new proposed ETS, it “means the employer has documentation showing that the person received, at least 14 days prior” either the second dose of a two-dose regimen, or a single dose of an FDA approved or emergency authorized vaccine. This is also a departure from the CDC definition of “fully vaccinated,” which includes World Health Organization approved or emergency authorized vaccines. So, if you have employees coming in from abroad that have received the AstraZeneca or Sinopharm vaccines, they technically do not meet the qualifications under the proposed ETS and would have to be treated as if they were unvaccinated.

What’s The Same?

Unfortunately, OSHSB appears to have missed its biggest opportunity to align with CDC’s May 13 guidance: employees who are fully vaccinated still must wear face coverings while indoors and in mixed company with employees who are not fully vaccinated. This restriction is contrary to CDC’s May 13 guidance.

But various items from the prior proposed version of the ETS remain in place, including:

  • Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
  • Employers still can provide employees who are not fully vaccinated with respirators for “voluntary use” to avoid having to enforce six-feet physical distancing for those individuals.
  • Employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
  • The definition of a sufficient face covering would include only a medical, surgical, or two-fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased will no longer meet the safety standard.
  • “Outbreak testing” would no longer be required when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
  • Individuals wearing a respirator under a Cal/OSHA-compliant respiratory protection program would be exempt from individuals identified under the definition of a “close contact.”
  • Notifications related to close contacts or outbreaks would be required to be given in a language the employee understands, and verbal notice would be permissible.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page.

The full text of the proposed revision to the ETS can be found here and a comparison with the May 20 proposal can be found here. It’s likely the Standard Board will vote on June 3, 2021. It’s anticipated that the revised ETS would become effective on or around June 15, 2021, to align with the State’s “re-opening.”

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated

By Karla Grossenbacher and Jean Wilson

Seyfarth Synopsis: The EEOC has updated its Technical Assistance Guidance (“Updated Guidance”) related to COVID-19 and, in particular, what employers are permitted to do with respect to vaccination programs and incentives for employees to get vaccinated. The EEOC’s Guidance was prepared prior to the CDC’s updated guidance for fully vaccinated individuals and does not specifically address employer questions related to the treatment of unvaccinated and vaccinated employees in the workplace. The EEOC indicated that it is currently considering any impact the CDC’s guidance might have on the guidance it has provided to date. Although the EEOC leaves much of its guidance from December 2020 in place, here are the key changes and additions in the Updated Guidance.

Mandatory Vaccination Programs

Although the majority of employers in the U.S. have not mandated that their employees get the vaccine, the Updated Guidance confirms that employers can require that employees be vaccinated in order to physically enter the workplace, subject to reasonable accommodations required for individuals with disabilities or religious objections, as previously discussed. The Updated Guidance provides additional examples of reasonable accommodations that an employer can consider that would allow an unvaccinated employee to come into the workplace, including wearing a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position.

The EEOC recommends as a “best practice” in the Updated Guidance that an employer introducing a mandatory COVID-19 vaccination policy notify all employees that the employer will consider requests for reasonable accommodation based on disability or religious objection and that such requests will be considered on an individualized basis. The Updated Guidance also affirmatively states that employees who cannot get vaccinated because of disability or religious objection are responsible for notifying their employer of the need for an exemption from the mandatory vaccine requirement. In this regard, the EEOC recommends that employers train managers responsible for communicating with employees about the employer’s vaccine requirement on how to recognize a request for an accommodation and to whom in the organization they should refer the accommodation request for full consideration.

In addition to these accommodation issues, the Updated Guidance instructs employers to assess whether a vaccine requirement may have an adverse impact on or disproportionately exclude employees based on their race, color, religion, sex, national origin, or age. Specifically, the Updated Guidance states that “[e]mployers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” This assessment will likely differ from workplace to workplace and region to region.

Also, in the Updated Guidance, although the EEOC maintains the distinction it drew in the December guidance between mandatory programs in which an employee receives the vaccine from a third party and those in which the employer administers the vaccine, it slightly restates the standard.  In the December guidance, the EEOC required a showing that a mandatory vaccine program was job-related and consistent with business necessity where the employer or a third party under contract with the employer administers the vaccine.  In the wake of the December guidance, questions arose about what type of contractual relationship triggered this heightened justification for a mandatory vaccine policy.  In the Updated Guidance, the EEOC clarifies that the relationship must rise to the level of agency, stating that the heightened showing applies if the vaccine is administered by the employer or its agent.

Voluntary Vaccine Programs

The Updated Guidance clarifies that employers who do not require that employees get the vaccine may still opt to have employees disclose their vaccine status, reaffirming that, as long as questions are limited to whether or not an employee is vaccinated (including the type of vaccine and dates administered) and do not inquire as to why an employee may have chosen not to get the vaccine, this inquiry is not considered a “disability-related” inquiry under the ADA.  Also, even where an employer provides the vaccine directly or through an agent, the pre-vaccination questions are permissible under the ADA, provided that an employee’s decision to answer the questions are voluntary.

Request for Accommodation from Vaccinated Employees

The EEOC addresses in the Updated Guidance that fully vaccinated employees may still be entitled to reasonable accommodation based on an underlying medical condition, instructing that employers must consider requests from fully vaccinated employees with a disability who request an accommodation because of a continuing concern that the employee faces a heightened risk of severe illness from a COVID-19 infection. The Updated Guidance explains that there are some employees who are immunocompromised and, as a result, the vaccine may not offer them the same measure of protection as other vaccinated individuals. In this situation, employers must engage in the interactive process with such employees and provide an accommodation, absent undue hardship.

Vaccine Requirements for Pregnant Employees

The EEOC Guidance also addresses requests for accommodation from employees who may request an exemption from a COVID-19 vaccine requirement because of pregnancy. In addressing these requests, the EEOC states that employers must ensure “that the employee is not being discriminated against compared to other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.” This portion of the Guidance seems to impose a duty on an employer to accommodate pregnant employees who do not get the vaccine in the same manner that the employer is accommodating employees who cannot get the vaccine because of disability or religious objection. The Guidance specifically directs employers to ensure managers and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII. Employers will want to carefully assess any such request and keep in mind accommodations that have been provided to other employees who are unable to get the vaccine.

Confidentiality of Proof or Confirmation of Vaccination

The EEOC makes clear in its updated guidance that documentation concerning proof or confirmation of vaccination is a medical record subject to the strict confidentiality requirements of the ADA.

In its prior December 2020 guidance, the EEOC had stated employers could ask for proof of vaccination status from employees and further instructed employers to caution employees not to include “medical information“ with their proof of vaccination. This raised questions about whether proof of vaccination itself was considered confidential medical information within the meaning of the ADA. The EEOC has now answered that question in the affirmative.

This pronouncement means that employers must treat proof or confirmation of vaccination as a confidential medical record under the ADA, which requires that such documentation be stored separately from the employee’s personnel file and once collected by Human Resources only shared as follows:

(i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii) Government officials investigating compliance with this part shall be provided relevant information on request.

29 CFR § 1630.14.  Employers who have already collected this information should move quickly to make sure that it is being stored and/or shared in a manner consistent with these requirements and update their policies and procedures accordingly.

Vaccine Incentives

The EEOC also confirmed the applicability of its wellness regulations under the ADA regarding vaccine incentives.  The EEOC’s updated guidance confirms that, under the ADA, if the employee receives the vaccine by a third party, i.e., not the employer or its agent, the employer can offer an incentive of any kind and require proof of vaccination form the employee before providing the incentive.  If, however, the employee receives the vaccine from the employer or its agent, then there are limits on the type of incentive that may be offered.  Specifically, it must not be “so substantial as to be coercive,” according to the EEOC’s update guidance.  This is consistent with the voluntariness requirement contained in the EEOC’s wellness rules under the ADA as we explain in our prior blog about the applicability of the EEOC’s wellness rules to vaccine incentives.  Although the EEOC explained in its updated guidance that a “very large incentive” could make employees feel pressured to disclose protected medical information (by responding to medical pre-screening questions when getting the vaccine from the employer or its agent), the EEOC did not give examples or set any specific parameters for what is or is not a “very large incentive.”  Employers who plan to provide the vaccine directly or through an agent, and are also offering vaccine incentives that might be considered “very large,” will want to reconsider their approach.

Employers need to review their current practices and policies regarding mandatory vaccinations programs, collection of proof of vaccination and vaccine incentives, as well as their accommodation processes to ensure compliance with the Updated Guidance.  Please reach out to your Seyfarth relationship attorney or the authors of this blog for assistance.

By: Jennifer L. Mora and Jeffrey A. Berman

The National Labor Relations Board’s sole Democrat, Chairman Lauren McFerran, has issued two new dissents that portend how a Biden Board likely will reverse precedent established by the Trump Board. This update is our fourth in a multi-part series discussing how Chairman McFerran’s dissents are likely to become the law once President Biden appoints new Board members and the Democrats are in the majority (see here regarding confidentiality in arbitration agreements, here regarding implementation of employee handbooks, and here regarding investigative confidentiality rules). The latest examples appear in separate Board decisions issued on April 30, 2021 (The George Washington Univ. Hospital) and May 3, 2021 (AT&T Mobility, LLC).

In George Washington , the Republican majority dismissed a complaint alleging that the employer had engaged in surface bargaining (e.g., going through the motions of negotiating a collective bargaining with no intent of actually reaching a deal). In sum, according to the majority:

The [employer] met with the Union for 30 bargaining sessions, made many of its initial proposals at the outset of the negotiations, solicited counterproposals from the Union, made concessions in response to the Union’s bargaining positions, and never refused to bargain over any mandatory bargaining subject—and all the while it calmly answered the Union’s bellicose conduct by continuing to bargain.

Noting that the Board “does not sit in judgment of a party’s bargaining proposals,” and faced with this evidence, the majority rejected the administrative law judge’s reliance on the substance of the employer’s proposals (primarily an initial request for substantial concessions) in finding bad faith bargaining, pointing to the fact that “not one of the … proposals was unlawful in and of itself.”

McFerran disagreed, pointing to the substance of the employer’s proposals, especially as they related the management rights clause, the no-strike provision, union security, and the grievance and arbitration process. What the majority described as a permissible “wish list, throw-in-the-kitchen-sink” proposal, McFerran dissent characterized as an “attempt to disrupt the process to reach an agreement.”

On this critical point, McFerran argued that “employer proposals which, taken as a whole, would leave employees with fewer rights than they would have without a contract are clearly designed to frustrate the collective-bargaining process.” She would have found a violation based solely on the employer’s presentation of its proposals relating to management rights, strikes, and grievance and arbitration procedures.

McFerran also would have found a violation based on the employer’s proposal to remove union security and dues-checkoff clauses from the agreement. And while the Board faulted the union for not responding to certain employer proposals (opining that the union had decided early on that the employer wasn’t interested in reaching a deal), McFerran stated that the majority was improperly “giv[ing] out points for politeness” and engaging in victim blaming.

The George Washington decision provides a good example of the stark contrast between how Republican and Democrat members view the same facts. It also serves as a reminder to employers to work with experienced labor counsel to develop a bargaining strategy that will withstand scrutiny under the soon-to-be Biden Board.

In AT&T Mobility, LLC, the Republican majority dismissed part of the complaint alleging that the employer violated the National Labor Relations Act by maintaining a work rule stating that employees “may not record telephone or other conversations they have with their co-workers, managers or third parties unless such recordings are approved in advance by the legal department.” Applying the Board’s 2017 Boeing decision, the Board balanced the employer’s justification for a policy the Board deemed to be neutral on its face against employees’ Section 7 rights. The Board upheld the policy concluding that, “[a]lthough the policy may prevent recording of some protected conversations, the vast majority of conversations covered by the policy bear no relation to Section 7 activity.”

In dissent, Chairman McFerran signaled that the analytical framework for analyzing handbook policies under Boeing is likely to be jettisoned by the Biden Board. Specifically, she described the rule as “unlawfully overbroad” and asked the Board to “reject the analytical framework of Boeing,” stating that it was “so forgiving to employers that it cannot be reconciled with the Act’s guarantees to employees.”

The fundamental flaw with Boeing, according to McFerran, “is that it permits employers to maintain rules that reasonably tend to chill employees in the exercise of their rights under the Act, while failing to require that employers narrowly tailor their rules to serve demonstrated, legitimate interests.” In comparing the standard for considering work rules before and after Boeing, she wrote:

Until Boeing, an employer was required to tailor workplace rules so that workers would understand that they were free to engage in activity protected by the NLRA without subjecting themselves to discipline or discharge. After Boeing, workers must not only be brave enough to engage in protected activity, but they must also be brave enough to knowingly violate workplace rules and so subject themselves to the threat of discipline. A clearer recipe for stifling protected activity is hard to imagine. (Emphasis in original.)

It is extremely like that, consistent with McFerran’s dissent, the Biden Board will overturn Boeing and return to the Obama Board’s framework for considering employee work rules. According to McFerran, the no-recording rule in AT&T Mobility would have been unlawful under pre-Boeing precedent. As such, employers, including those with non-union workforces, would be well-advised to review their handbook policies in anticipation of a possible dramatic shift in Board law.

Seyfarth Synopsis: On Monday, May 24th at 12:30 p.m. Eastern, Seyfarth attorneys Adam Young, Scott Hecker, and Patrick Joyce will present a webinar entitled Evolving Landscape: OSHA and CDC COVID-19 Guidance.

During his first full day in office, President Biden issued an Executive Order directing OSHA to consider a COVID-19 emergency temporary standard (ETS). OSHA drafted an ETS, which is in White House review, and its imminent release has been reported for weeks. Meanwhile, since President Biden’s executive order, OSHA issued new COVID guidance and announced a COVID-19 National Emphasis Program that DOL is aggressively enforcing.  With new CDC guidance for fully vaccinated individuals announced on May 13, and OSHA playing catch up, the federal landscape is as slippery as ever.

In this mini-webinar, members of Seyfarth’s Workplace Safety & Environmental Practice Group will provide a status on the ETS and its contents. We will also discuss OSHA’s guidance, National Emphasis Program, and employer liabilities related to continued COVID precautions in the workplace. We will provide recommendations for how companies can respond to the new ETS and apply new guidance from the CDC for vaccinated employees.

Registration is free, but attendees are limited, so please Register Here.

If you have any questions, please contact Kelly Sokolowski at ksokolowski@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

This webinar is accredited for CLE in CA, IL, NJ, and NY. Credit will be applied for as requested for TX, GA, WA, NC, FL and VA.  The following jurisdictions accept reciprocal credit with these accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, CT, ME, NH.  The following jurisdictions do not require CLE, but attendees will receive general certificates of attendance: DC, MA, MD, MI, SD.  For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used in other jurisdictions for self-application. If you have questions about jurisdictions, please email CLE@seyfarth.com.

By Brent I. ClarkJames L. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 18, 2021, OSHA adopted (by reference) CDC’s May 13, 2021 guidance for fully vaccinated individuals in many non-healthcare settings. Specifically, OSHA announced that employers should “refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”

According to the May 13, 2021 CDC “Interim Public Health Recommendations for Fully Vaccinated People,” which OSHA adopts by reference, individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

Under the Biden administration, federal OSHA has taken an aggressive position with regard to ramping up COVID-19 workplace health and safety enforcement, which often appears to conflict with CDC guidance. OSHA has not yet issued specific regulations relating to COVID-19 or infectious diseases more generally. OSHA supposedly has drafted a COVID-19 emergency temporary standard (ETS), which has not yet been released. As of May 17, 2021, we understand that the ETS is moving forward and will apply to all general industry worksites.

After the transition to the Biden administration, OSHA issued COVID-19 Guidance on January 29, 2021. With respect to vaccinated employees, OSHA explains that “workers who are vaccinated must continue to follow protective measures, such as wearing face covering and remaining physically distant, because at this time, there is not [sic] evidence that COVID-19 vaccines prevent transmission of the virus from person to person.” This prior guidance from OSHA appears to conflict with CDC’s May 13, 2021 update.

Until today, the probability of OSHA enforcement under two seemingly contradictory sets of guidance was an open question. Though the OSHA website still requires vaccinated employees continue to mask and social distance, OSHA has added a banner at the top of the webpage indicating that the CDC’s May 13, 2021 guidance will trump OSHA’s vaccinated employee guidance while OSHA reviews its own measures, and that new guidance from OSHA is forthcoming.

With respect to enforcement, OSHA looks to its guidance to determine whether hazards are “recognized” and whether employers’ health precautions are sufficient to abate the hazards. Due to OSHA’s adoption by reference of CDC’s May 13, 2021 update, we do not anticipate OSHA to try to establish liability based on alleged exposures from vaccinated, asymptotic employees.

As we previously blogged, the CDC’s May 13, 2021 guidance cautions that fully-vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. CDC indicates that people are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Non-safety considerations employers may want to take into account include how to internally enforce the requirement that only fully vaccinated individuals can go mask-less, whether employers’ policies may lead to disparate treatment or negatively impact morale, and maintained uniform corporate protocols.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On May 13, 2021, CDC announced further updated recommendations for fully vaccinated people in non-healthcare settings.

In an unexpected turnabout from previous guidance, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People” to recognize that individuals who are fully vaccinated against COVID-19 may stop wearing masks or maintaining social distance in the vast majority of indoor and outdoor settings, regardless of crowd size.

People are considered fully vaccinated:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

In deference to local authorities, fully vaccinated individuals must continue to abide by existing state, local, or tribal laws and regulations, and applicable workplace guidance. Further, they must follow rules put in place by businesses. Many state and local jurisdictions currently have mandatory rules requiring masking and social distancing, mostly while indoors. Given this updated guidance, it is likely that state, local, and tribal governments, as well as businesses, will update mask requirements and guidance in the near future. We had previously blogged on the CDC’s updates allowing fully vaccinated individuals to remove masks outdoors, with certain restrictions.

The CDC new position can be summed up as follows: if you are fully vaccinated, you are protected, and you can start doing the things that you stopped doing because of the pandemic. But the new guidance comes with caveats. Even vaccinated individuals must cover their faces and physically distance when going to doctors, hospitals, or long-term care facilities like nursing homes; when traveling by bus, plane, train or other modes of public transportation, or while in transportation hubs like airports and bus stations; and when in prisons, jails or homeless shelters.

Specific updates in the new guidance include:

  • Fully vaccinated people no longer need to wear a mask or physically distance in most settings, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
  • Fully vaccinated people can refrain from quarantine and testing following a known COVID-19 exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter, or unless they start showing COVID-19 symptoms after exposure.

For now, if you’ve been fully vaccinated:

  • You will still need to follow guidance at your workplace and requirements put in place by businesses.
  • If you travel, you should still take steps to protect yourself and others. You will still be required to wear a mask on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States, and in U.S. transportation hubs such as airports and stations. Fully vaccinated international travelersarriving in the United States are still required to get tested within 3 days of their flight (or show documentation of recovery from COVID-19 in the past 3 months) and should still get tested 3-5 days after their trip.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get testedand stay home and away from others.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.