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Posts Tagged ‘EEOC’

EEOC Issues Guidance on Mandatory COVID-19 Vaccine Programs and Permissible Vaccine Incentives-What Employers Need to Consider

Posted on: June 3rd, 2021

By: John Bennett and Doug Blatecky

Although many businesses have not mandated that their employees get a COVID-19 vaccine, the EEOC’s recently released guidance confirms that federal equal employment opportunity laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated. It remains unclear whether not businesses can require employees to continue to work remotely to receive the vaccine. 

Although employers may require vaccinations for returning employees, such mandates are still subject to reasonable accommodations required for individuals with disabilities or religious objections. In addition, employees who are not vaccinated because of pregnancy may be entitled to accommodations. The EEOC’s guidance provides several examples of reasonable accommodations, which might include maintaining social distance from other employees, wearing a mask, periodic testing, working an alternative schedule, or working remotely. It is important to have an interactive dialogue with employees who object on the basis of a disability, sincerely held religious belief, or pregnancy to determine what, if any, accommodation would be reasonable under the circumstances. The EEOC also reminded employers that to determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an individualized assessment of the individual’s present ability to safely perform the essential functions of the job must be undertaken.

Employers that choose to implement a mandatory vaccine program should also be aware of the potential for claims that implementation of such a program has a disparate impact on employees within a certain protected group. Because some demographic groups may face greater barriers to receiving a COVID-19 vaccine than others, some employees may be more likely to be negatively impacted by a vaccination requirement. Thus, risk-averse employers may choose to encourage (rather than require) employees to get vaccinated and educate employees as to the benefits of vaccination.

The new EEOC guidance also expressly permits employers to provide incentives to employees for providing proof of vaccination. However, if the employer is sponsoring its own vaccination program for employees, incentives offered cannot be so substantial so as to be coercive. In addition, the Genetic Information Nondiscrimination Act prohibits employers from offering incentives to employees to have their family members vaccinated, but permits employers to extend the program to family members without incentive.

Finally, proof of vaccination is a protected medical record under the ADA and employers must take care to maintain its confidentiality, i.e., employers cannot generally share with the workforce the identity of who has or has not been vaccinated.

Guidance concerning the COVID-19 pandemic continues to evolve and leaves many employers with questions. If you have any questions or would like additional guidance, please contact our attorneys.  

For more information, please contact John Bennett at [email protected] or Doug Blatecky at [email protected].

Eligible Employers Have Until Monday, July 19, 2021 to Submit Their EEO-1 Component 1 Data Collection for the 2019 and 2020 Year

Posted on: May 12th, 2021

By: Hannah-Kate Gosch

On April 26, 2021, the Equal Employment Opportunity Commission (“EEOC”) announced that it was opening the 2019 and 2020 EEO-1 Component 1 data collection on its recently relaunched data collection website. Eligible employers have until Monday, July 19, 2021 to submit their 2019 and 2020 EEO-1 Component 1 data, which breaks down an eligible employer’s employees by job category, race, sex, and ethnicity.

Pursuant to Title VII of the Civil Rights Act of 1967, the EEO-1 report requires all eligible employers, such as private sector employers with 100 or more employees, and federal contractors with 50 or more employees awarded a contract of $50,000 or more, to report employee demographics by job category, gender, race, and ethnicity each year. This includes non-profits and not for profit organizations. However, federal contractors with 1-49 employees, other private employers with 1-99 employees, state and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes and tax-exempt private membership clubs other than labor organizations are exempt from the EEO-1 report requirement.

Eligible employers can file their 2019 and 2020 EEO-1 reports entirely online via: (1) the online form (available beginning Monday, April 26, 2021) or (2) a data file upload (available Wednesday, May 26, 2021). To complete the report, eligible employers will need: their company ID and passcode (provided via U.S. mail for previous filers or at registration for new filers); company EIN, NAICS codes, and DUNS number; address and EINs of all established locations; count of all full and part-time employees during the workforce snapshot pay period selected by the employer; sex and race/ethnicity of all employees; and job categories of all employees. To select the workforce snapshot pay period, an eligible employer must select one pay period in October, November, or December of the data collection year; eligible employers may select different workforce snapshot pay periods for the 2019 and 2020 data collections. For more information, visit the EEOC’s frequently asked questions page, fact sheets, or the filer support assistance page.

If you have any questions or would like more information, please contact Hannah-Kate Gosch at [email protected].

EEOC 2020 Data Shows Increased Cost of Resolving Workplace Claims

Posted on: March 30th, 2021

By: Brenton S. Bean

The Equal Opportunity Employment Commission has released its 2020 enforcement statistics.  These statistics are important because they show trends in the types of claims being brought by employees, as well as those which the EEOC chooses for enforcement action.  In summary, the statistics indicate that while claims are down, the amount spent by employers to resolve these claims is up considerably.

The data shows the number of charges declined in 2020 to 67,448 charges, down from 72,675 in 2019.   However, the amount of the average recovery to resolve each charge rose 11.4%.  Additionally, the amount of recovery in merit lawsuits brought by the EEOC rose considerably from $39.1 M to 106.1 M.    

As in 2019, claims of retaliation remain the most frequently asserted, accounting for nearly 56% of all charges submitted.  Second among the types of charges submitted were claims of disability discrimination at 36.1 %. 

Knowing that retaliation claims are the most frequently filed charge is important for employers in not only fashioning their workplace policies and procedures, but also in implementing training to avoid such claims.  Retaliation occurs, generally speaking, when the employee engages in some type of protected activity, after which the employer takes adverse employment action against the employee.  The employee has to show the adverse action would not have occurred but for the protected activity.  Employers’ procedures for investigating workplace claims of discrimination or harassment, along with their policies for documenting not only those investigations but also employee discipline, are keys to defending and defeating retaliation claims. 

If you have any questions about workplace training, handbooks and developing compliant policies and procedures, please contact Brent Bean at [email protected].

A Mandatory COVID-19 Vaccination Program in the Workplace: Will It Open An Employer To Liability?

Posted on: January 29th, 2021

By: Kevin G. Kenneally and Janet R. Barringer

With the development of vaccines that have been determined to be effective against COVID-19, both employers and employees are asking when it is appropriate or safe to return to the office. One recurring question is whether a business can require its workers to be vaccinated in order to return to work. While there is much recent written guidance suggesting that the employer can require employees to be vaccinated, there remain questions about the potential legal liability of a business either for requiring or failing to require employees to undergo vaccination. For this reason, some employers—other than those in the health care or on the frontlines fighting this scourge– believe the preferred path to take might be encouraging – rather than mandating – the vaccine for its employees.

The Equal Employment Opportunity Commission (EEOC) issued guidance in December 2020, located on its website at www.eeoc.gov, that employers can mandate that employees receive COVID-19 vaccinations. Employers who require the vaccine, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other federal and state workplace laws. Federal employment laws require employers to make exceptions to any mandatory vaccination policy, including under the ADA, which protects employees with disabilities who may be vulnerable to side effects, and Title VII, which protects any employee with sincerely held religious beliefs that prevent the employee from receiving the vaccination.

The ADA allows an employer to include as a workplace policy “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace” which permits a mandatory vaccine policy.  If an employer’s vaccination requirement impacts a worker with a disability, however, the employer must show that unvaccinated disabled employee 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.”  The EEOC has said employers should evaluate four factors to determine whether a “direct threat” exists: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. 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.

There are two exceptions where disability-related screening questions can be asked without satisfying the “job-related and consistent with business necessity” requirement.  First, if an employer has offered a vaccination to employees on a voluntary basis, the ADA requires the employee’s decision to answer pre-screening disability-related questions to also be voluntary.  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine and may not retaliate against the employee for refusing to answer any questions. Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions. 

FMGlaw BlogLine previously discussed the vaccine manufacturers’ immunity from products liability suits conferred by federal law for illness, injury or complications caused by the vaccine. An employer, however, may find itself liable for an employee’s injury resulting from a mandatory vaccine, which could be considered a workplace injury under state workers compensation laws. Such injuries and illnesses resulting from required vaccines may be covered by the employer’s workers’ compensation insurance. Employers considering a mandatory vaccination program should check with their broker or business insurance provider to determine whether there is coverage.

Employers that choose not to require employee vaccinations separately may find themselves liable to customers or vendors exposed to COVID-19 at a business that could have been prevented by a vaccination program. Depending on the business and the nature of interaction with the public, a vaccination program may be advisable.

If vaccination is mandatory for employees, the business could encounter wrongful termination or other legal issues when the requirement is enforced in the workplace. Adverse action, such as termination, change of shifts or hours, demotions or transfers involving workers who refuse the COVID-19 vaccine could expose the company to litigation. Thus, many businesses and employers may opt to encourage employees to be immunized rather than implement company-wide mandatory vaccination programs.  The EEOC, for example, previously suggested such a voluntary approach for the seasonal flu vaccine in certain instances: “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”  Such encouragement – as opposed to a workplace-wide requirement – might be prudent for some employers for the COVID-19 vaccine. Many employers may opt to encourage their workers to obtain the COVID-19 vaccine, including by offering the following: make the vaccine readily available to the employees, cover the cost of the vaccine, provide workplace incentives to those who receive the vaccine, and pay for time off to obtain the vaccine.

Employers need to strike the proper balance during the pandemic and when assessing the competing objectives of protecting employees’ rights under the ADA and freedom of religion, limiting their own exposure to legal liability, and protecting employees and customers from the COVID-19 virus.

If you have questions or would like more information, please contact Kevin G. Kenneally at [email protected], Janet R. Barringer at [email protected].

EEOC Issues Revised Guide for Employers on the Employment of Veterans with Disabilities

Posted on: December 9th, 2020

By: Andrew Kim

On November 27, 2020, the EEOC issued three revised publications discussing the employment of veterans with disabilities. One of those publications is a revised guide for employers on how the ADA applies to the recruiting, hiring, and accommodation of veterans with disabilities.[1]  One topic of note is the EEOC’s guidance to employers on applicants who are disabled veterans.

Employers generally may not ask for medical information from applicants before making a job offer. However, according to the Revised Guide, employers may ask applicants to voluntarily self-identify as individuals with disabilities or a disabled veteran if the employer is:

  • Undertaking affirmative action because of federal, state, or local law (which includes a veterans’ preference laws) that requires affirmative action for individuals with disabilities; or
  • Voluntarily using the information to benefit individuals with disabilities, which includes veterans with disabilities.

Employers also can ask organizations who assist disabled veterans find employment whether it has suitable applicants for a particular job. It is important for employers to know that, if a written questionnaire is used for the purpose of having applicants voluntarily self-identify as disabled veterans, the written questionnaire must “indicate clearly and conspicuously” or “clearly state:”

  1. The information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and
  2. The specific information is being requested on a voluntary basis, the information will be kept confidential in accordance with the ADA, refusal to provide this information will not subject the applicant to any adverse treatment, and the information will be used only in accordance with the ADA.

The information collected for affirmative action purposes must be kept separate from the application itself in order to maintain confidentiality.

The EEOC’s Guidance states that, while the ADA prohibits discrimination on the basis of disability, it does not prevent affirmative action on behalf of disabled individuals. Therefore, per the guide, an employer can hire disabled individuals, which includes disabled veterans, over a qualified individual without a disability.

If you have any questions or would like more information, please contact Andrew Kim at [email protected]


[1] https://www.eeoc.gov/laws/guidance/veterans-and-americans-disabilities-act-guide-employers