Can an Employer Mandate Covid-19 Vaccination? EEOC Issues Revised Guidelines....

Effective October 1, 2020, a new law in Tennessee will provide further protections to pregnant workers. The Tennessee Pregnant Workers Fairness Act, Tenn. Code Ann. §50-10-101 through 104, places pregnancy-related reasonable accommodation obligations upon employers with 15 or more employees.

Pregnancy-related accommodations allowed under this new law include, but are not limited to:

   · Making existing facilities used by employees readily accessible and usable;

   · Providing more frequent, longer, or flexible breaks;

   · Providing a private place, other than a bathroom stall, for the purpose of expressing milk;

   · Modifying food or drink policy;

   · Providing modified seating or allowing the employee to sit more frequently if the job requires standing;

   · Providing assistance with manual labor and limits on lifting;

   · Authorizing a temporary transfer to a vacant position;

   · Providing job restructuring or light duty, if available;

   · Acquiring or modifying of equipment, devices, or an employee's work station;

   · Modifying work schedules; and

   · Allowing flexible scheduling for prenatal visits.

An employer who denies a reasonable accommodation request bears the burden of demonstrating that the accommodation would impose an undue hardship, which is defined as “significant difficulty or expense.”  Additionally, an employer is not required to provide certain types of pregnancy-related accommodations if those accommodations would not also be provided to non-pregnant employees. For example, an employer would not be required to hire, transfer, or promote someone who was not otherwise qualified for the job. An employer is not required to create or provide a “light duty position” unless the employer already has a policy of doing so for other employees (such as employees who have had on-the-job injuries).

The new law makes the following employment actions unlawful:

· Refusing to make pregnancy-related reasonable accommodations, unless the employer demonstrates that the accommodation would impose an undue hardship;

· Requiring an employee to take leave if another reasonable accommodation can be provided which would allow the employee to continue working;

· Taking any adverse action against an employee for requesting pregnancy-related accommodation, including counting an absence related to pregnancy under a no-fault attendance policy.

An employer may require medical certification in response to a pregnancy-related accommodation request, but only if the employer requires the same for non-pregnancy-related accommodation requests. An employee’s request for reasonable accommodation immediately triggers the employer’s obligation to engage in a good faith interactive process with the employee to determine if a reasonable accommodation can be provided absent undue hardship.

Anyone (job applicant or employee) who suffers a violation under this new law may file a lawsuit in either Chancery or Circuit Court. The law specifies the following remedies: back pay, compensatory damages, prejudgment interest, attorney fees, “and any legal or equitable relief that will effectuate the purpose of this chapter.”

WHAT ARE YOUR RIGHTS AND OBLIGATIONS?

With the WHO’s declaration of a COVID-19 pandemic on March 11, 2020, many employees and companies find themselves in unchartered territory.  Employees have significant concerns about whether they will get paid and how to care for their young children during school closures.  Businesses want to know what they can and should do to keep a safe workplace that can survive this massive slowdown.  Frankly, we are all in this together and hopefully most are looking for solutions.  We hope to help you by offering an outline of how current employment laws may apply to dictate what you can and cannot do and what rights you have to pay and other potential benefits, absent any emergency measures that may be passed by state or federal governments.  

The main laws that typically apply to health-related matters include the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (the ADA), worker’s compensation laws (vary by state), and regulations issued by the Occupational Safety and Health Administration (OSHA). Additionally, your state may have recently passed paid leave laws that enhance the rights available to employees.  While these main laws will apply to most COVID-19 scenarios, they contain certain exceptions that only apply during a pandemic, so even if you have a strong working knowledge of them you should become familiar with how they apply in this current climate. This article endeavors to provide a general overview of basic principles and is not meant to constitute legal advice for specific scenarios.  As always, M&H recommends that you consult an attorney to obtain legal advice that applies to your own unique situation.  

The following is an outline of how these main laws may come into play depending upon whether your workplace is running as normal, whether you are teleworking, whether you are out of work temporarily, whether you are currently well, and whether you or a family member have been diagnosed. 

1. If your business or workplace is up and running:

Ordinarily, the ADA prohibits employers from asking employees about their health or requiring medical exams, except during prescribed time periods (such as post-offer pre-employment exams).  One of those permissible periods is when a pandemic has been declared.  

During a declared pandemic, employers may ask health-related questions or take action in order to reduce the risk of substantial harm to the health or safety of the individual or others.  As such, an employer may:

• Send employees home if they display symptoms consistent with COVID-19;

• Ask employees if they are experiencing symptoms consistent with COVID-19;

• Ask employees how have recently traveled about their exposure to COVID-19 during the trip;

• Encourage employees to telework;

• Adopt infection-control strategies;

• Require employees to wear face mask or gloves to reduce possibility of transmission; and

• Require employees returning from leave due to COVID-19 to provide a medical document indicating fitness to return to work; 

• Unless there is a state law prohibiting it, restrict off-duty travel of employees; and

• Mandate that employees self-quarantine after they return from travel.

If your employer engages in any of those actions or asks these questions, it should maintain the confidentiality of any information obtained.  

Despite the special circumstances that arise during a pandemic, an employer should only focus its questions or exams on COVID-19.  It may not question employees about any disabilities they may have that could cause them to be more vulnerable to COVID-19.  As an employer, if you wish to help identify which employees could work during a pandemic, the EEOC offers a sample ADA-compliant questionnaire to distribute to employees, found at www.eeoc.gove/facts/pandemic_flu.html.  

As is always the case, an employee may self-identify a disability (such as lupus, cancer, RA, Chrohn’s Disease, etc.) and ask for a reasonable accommodation to reduce the chance of contracting COVID-19.  Depending upon the size and realities of the workplace and specific job involved, reasonable accommodations may include permitting telework or allowing an employee to work a shift or during a time period when other employees are not present.  Generally,

 an employer should provide a reasonable accommodation to an employee with a disability so long as it does not impose an undue burden upon the employer.  To determine the best course of action, the employer and employee should talk and engage in what the ADA calls “the interactive process.”  Of course, how “undue burden” is defined may be different in COVID-19 circumstances.  Keep in mind that the only employees who are entitled to potential reasonable accommodations are those who have actual disabilities as defined in the ADA.  At this point, it does not appear that contracting COVID-19 would be an actual disability in and of itself, unless it causes long-term complications to an individual.  

If you contract COVID-19 or if you have a close family member who does and if you have worked for more than 12 months for an employer with 50 or more employees in a 75-mile radius, then you may be entitled to unpaid leave (up to 12 weeks) under the FMLA.  If your employer requires it, you may need to have your doctor fill our an FMLA certification form.  Unless you live in a state that provides the right to paid medical leave, then you are not necessarily entitled to pay during your COVID-19 leave.  You may, however, qualify for short-term disability relief.  Further, if you contracted COVID-19 during a work trip or event, it is possible that you may apply for worker’s compensation benefits.  Finally, if you do go on COVID-19 FMLA leave, an employer may require you to utilize any accrued PTO you have.  When you are able to return to work, if you have taken leave under the FMLA you are entitled to be restored to your position (if it still exists) or a substantially similar one.

We encourage employers to relax the FMLA certification requirement during this pandemic in order to ease the burden upon medical providers and encourage employees to utilize telemedicine opportunities.  Likewise, if employers are requiring employees to provide fitness-for-duty information upon a return to work, we encourage companies to consider minimizing the burden upon medical providers.

If an employee is diagnosed with COVID-19 and has been in the workplace, an employer may have an obligation to make a log or recording of it with OSHA.  For more information, visit osha.gov.

2. If your business or workplace is permitting/requiring telework:

Any business permitting or requiring telework should do so on a basis that is fair and that permits all employees in like job titles equal opportunity for telework.  Employers should take caution in basing telework opportunities upon an employee’s ability or past performance.  The same ADA and FMLA considerations outlined above will apply to telework situations, although if the employee is having little to no physical contact with others in the workplace, then the employer does not have a compelling interest in protecting others in the workplace and should avoid asking health-related questions.  

Employees who are teleworking are entitled to be paid as if they are at work.  Employers should implement an effective timekeeping system to ensure that all hours worked are reported so that it does not face any potential FLSA or overtime claims.  All time spent by an employee for the benefit of the employer or when they are “engaged to wait” and be near a computer to respond quickly should be compensable time worked.  Further, if employees must report at times to a physical workplace, make sure that you take into account what portion of travel time may be compensable.

Employers should also be mindful of the salary-basis requirement for exempt employees.  If you have employees who are properly classified as exempt (in terms of job duties and pay basis), then be sure to continue to pay them on a salary basis unless one of the specifically-delineated FLSA exceptions for salary docking applies.  

3. If your business or workplace is closed or under reduced hours:

Unless you have earned and accrued PTO or a contract right to paid time off, then unfortunately employees are at the mercy of businesses that face forced shutdown as to whether they will be paid for their time off.  M&H is touched by the many caring employers who, despite having no legal obligation to do so, have continued to pay employees during COVID-19 closures.  

The U.S. Department of Labor has given states the option of amending their unemployment regulations to allow for unemployment benefits during COVID-19 closures and temporary unemployment.  It appears that Tennessee may be considering such a measure, as its website indicates that employers who need to close or employees who are out of work due to COVID-19 may contact the TDLWD at 844-224-5818 to discuss available relief.    

We hope that this article helps employers and businesses to navigate the employment dilemmas that may arise during the COVID-19 pandemic.  If you need additional help or advice, please contact Donna Mikel and Doug Hamill for additional advice.  We are a fully-functioning law firm that is committed to continuing its business (in person, telephonically, or through video conferencing) during this difficult period.