Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recordings]

April 12, 2022Theresa Green Leave a comment

On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading →

Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

January 7, 2022January 7, 2022Theresa Green Leave a comment

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been. Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or business owner. Change appears to be the one constant. As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC. At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

2022 Labor and Employment Webinar Series – Program Schedule

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Update to New Maryland Law Requiring Bed Height Thresholds for Hotels

December 16, 2021Jordan B. Schwartz Leave a comment

Update In October 2020, we published a blog post noting that with relatively low publicity at the time, the State of Maryland had enacted a law titled an “Act for Lodging Establishments – Accessible Rooms for Individuals with Disabilities – Bed Height,” requiring hotels and other places of lodging with at least 4 guestrooms to provide beds of certain heights in accessible guestrooms for individuals with disabilities, even though providing beds of specified heights in accessible guestrooms is not a requirement of the Americans with Disabilities Act.

Now, once again with little fanfare, the State of Maryland has made an important change to this law, postponing, by one year, when each requirement is phased in over the course of four years. In the original version of the law, at least 25% of the beds in accessible guestrooms would have been required to meet the new requirements (explained below) by December 31, 2021. Now, however, by December 31, 2022 (i.e., instead of 2021), at least 25% of the accessible rooms in a lodging establishment must Continue reading →

Employment Law Implications of the OSHA ETS: Medical and Religious Accommodation Requests

December 9, 2021Ashley D. Mitchell Leave a comment

Published in the Federal Register on November 5, 2021, the Federal OSHA Emergency Temporary Standard on Vaccination and Testing (“ETS”) first major compliance deadline was December 6, 2021. However, as a result of a stay entered by the 5th Circuit, and the 6th Circuit’s refusal to grant the Biden Administration’s petition to move up the briefing schedule, OSHA cannot begin enforcing, and has ceased all action, including answering employer questions about, the standard. (For continued updates on the status of the ETS review our Employer Defense Report and OSHA Defense Report.) As outlined in greater detail in a previous blog, the ETS generally requires employers with 100 or more employees to: develop employer policies on vaccination; provide paid time off for vaccination and to recover from vaccination; require employees to provide proof of full vaccination or submit to weekly testing; require unvaccinated workers to wear a face covering; remove COVID-19 positive cases from the workplace; and inform employees about the requirements of the ETS, COVID-19 vaccine efficacy and safety, prohibited retaliation, and the criminal penalties associated with knowingly supplying false statements or documentation. Given the robust requirements of the ETS, employers would be well advised to put in place mechanisms for compliance with the ETS in the event the stay is lifted, particularly if there is no delay in compliance deadlines. One important consideration is how to handle ETS-related medical and religious accommodation requests.

1. Background

Title I of the Americans with Disabilities Act of 1990 (ADA) requires employers to provide a reasonable accommodation, so long as it does not impose an “undue hardship,” to qualified employees who have a disability. A person with a disability has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment. A qualified employee or applicant with a disability is a person who, with or without a reasonable accommodation, can perform the essential functions of the job. If an employee or applicant with a disability requests a reasonable accommodation, employers must engage in an interactive process. In doing so, EEO guidance permits employers to consider whether complications created by the COVID-19 pandemic create a “significant difficulty” in acquiring or providing certain accommodations. For example, it may be more difficult for an employer to provide an employee requesting an accommodation with a temporary re-assignment.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of religion. Employers are required to provide a reasonable accommodation to employees with a “sincerely held” religious belief unless doing so would cause more than a minimal burden. In Draper v. U.S. Pipe & Foundry Co., the court held Continue reading →

Update on Challenges to Federal Contractor Mandate

November 19, 2021November 19, 2021Aaron Gelb Leave a comment

By Fern Fleischer-Daves

While we remain focused on the legal challenges now consolidated at the Sixth Circuit Court of Appeals, quite a lot has been going on with regard to the Federal Contractor Mandate which is facing its own set of challenges.

Did you recently receive a request to amend an existing federal contract?

If so, you are not alone! Over the past few weeks, federal administrative agencies have been busy sending emails to tens of thousands of federal contractors seeking to amend existing federal contracts by implementing a COVID-19 vaccination mandate pursuant to guidance issued by the Safer Federal Workforce Taskforce. These efforts are now being tracked through a new online interactive dashboard reflecting whether or not the 17,000+ contracts currently administered by GSA have been amended. The contracts in this publicly accessible database are classified as “Accepted”, “Closed/Cancelled”, or “Pending.” Meanwhile, federal agency contracting officers are being strongly encouraged to check this database before placing new orders.

Needless to say, there are potentially serious consequences for a current federal contractor who fails to respond or declines to accept the vaccination mandate. GSA has warned that company names flagged as “Closed/Cancelled” in this database may be removed or hidden in other federal contracting tools which will make it difficult if not impossible to get any new orders on existing contracts. Recent solicitations for new federal contracts have the clause implementing EO 14042 already included in the terms and conditions.

Employees of federal contractors challenge EO 14042

While several cases have been filed to challenge the President’s authority to mandate vaccinations for federal employees and/or contractors, so far, none have secured a stay of EO 14042.

In Altschuld v. Raimondo, employees of more than a dozen different federal agencies and two unnamed government contractors are challenging both Executive Orders 14042 and 14043. Last week, Judge Chutkan in the DC Circuit Court held that plaintiffs failed to show irreparable harm, since they had all requested religious exemptions from the vaccination mandate, so they are not entitled to a preliminary injunction. Explaining further, the Court noted that: Continue reading →

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

November 4, 2021Kara Maciel Leave a comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation. The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5^th. The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text. The regulatory text begins on PDF page 473. Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10^th at 1:00 PM ET.Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

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New EEOC Guidance on Religious Exemptions / Accommodations

October 28, 2021Ashley D. Mitchell Leave a comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier this week, the EEOC finally updated its guidance on Title VII and Religious Objections to COVID-19 Vaccine Mandates, which will impact how employers will implement their various vaccination, testing, and masking requirements.

US law has long-recognized an exemption from mandatory work policies (including vaccine-mandates) based on sincerely held religious beliefs, pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state statutes). For employers, evaluating religious exemption requests can be tricky (certainly trickier than requests for medical/disability-based exemptions), as there is often no readily verifiable evidence to help ascertain whether an employee’s religious objection to the work policy is a sincerely held religious belief (or even a religious belief at all). Indeed, although it is permissible to attempt to obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system, and employee is not required to provide such a statement, as they may not be affiliated with an organized religion. Furthermore, as an end-around to COVID-19 vaccine-mandates, many employees nationwide are attempting to seek a religious exemption when their actual objections are really based in political, ethical, or personal beliefs.

In response to requests from the regulated community, the EEOC has attempted to provide more clarity so that employers can have more confidence in implementing their accommodations process, and in many instances, to push back on suspect claims by employees of the need for a religious exemption. The guidance does offer some useful tools for employers, but unfortunately, it is not as helpful as we had hoped it might be.

The theme of the EEOC’s updated guidance is that employers must make an individualized evaluation of each employee’s request for a religious accommodation. The EEOC renewed Continue reading →

Pfizer Vaccine’s Full FDA Approval – What Does This Mean for Employers?

August 26, 2021Daniel C. Deacon Leave a comment

Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine. Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use. While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.

As explained in our prior blog, employers can mandate employee vaccinations under federal law. The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces. The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.

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The ADA is Turning The Big 3-1, but There is Still Little Guidance on Long COVID and Title I of the ADA

July 29, 2021Ashley D. Mitchell Leave a comment

Happy anniversary to the Americans with Disabilities Act (ADA) which turns thirty-one this year. To celebrate its anniversary President Biden is “bringing agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law.” According to President Biden, this “includes accommodations and services in the workplace, in school, and our health care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.” The Department of Health and Human Services (HHS) jointly with the Department of Justice (DOJ), as well as the departments of Education and Labor, have released guidance explaining that long COVID can be a disability under various federal civil rights laws, including the ADA.

“Long COVID.” “Long-haul COVID.” “Post-acute COVID-19.” “Long-term effects of COVID.” “Chronic COVID.” For clarity, all of these terms refer to new or ongoing symptoms experienced by some people after first being infected with COVID-19 and they are generally referred to as COVID long-haulers. Approximately 30% of COVID positive patients are COVID long-haulers and reported continued symptoms as long as nine months after their initial confirmed positive, according to a study published in JAMA Network Open in February. According to the CDC, symptoms may occur regardless of the severity of the COVID illness and include difficulty breathing or shortness of breath, fatigue, sleeping problems, fevers, gastrointestinal issues, anxiety and depression, dizziness on standing, and “brain fog.” Some people who had severe COVID-illness may experience multiorgan effects or autoimmune conditions over a longer time with symptoms lasting weeks or months after COVID-19 illness. Finally, some who were hospitalized as a result of their COVID illness may suffer health effects during their recovery like severe weakness and exhaustion.

The guidance issued by HHS and DOJ addresses Continue reading →

How to Avoid a $100 Million Dollar ADA Verdict and Other Lessons Learned at Wal-Mart’s Expense

July 22, 2021Aaron Gelb Leave a comment

Last week, a federal jury ordered Wal-Mart to pay Marlo Spaeth, an employee with Down syndrome, $125 million in punitive damages and $150,000 in compensatory damages for failing to accommodate her disability and terminating her employment. While it would be easy to write-off this verdict as a runaway jury trying to send a message to a company which is, by far, the largest private employer in the United States, there are still lessons to be learned here that apply to employers of all sizes. Whether you employ 150; 1,500 or 1.5 million people, failing to handle employee requests for accommodation (a plea for help, really) in a thoughtful, humane matter has the potential to blow up in your face in a spectacular fashion.