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Get The Shot Or Get Fired?

Get The Shot Or Get Fired?

by | Sep 17, 2021 | Workplace Issues, Workplace Safety

President Biden issued an Executive Order compelling companies with more than 100 employees to require all employees to be vaccinated or provide proof of weekly negative COVID-19 tests. This also applies to smaller companies that are federal contractors. 

While this order creates many legal questions for companies, the most pressing decision employees must make is whether to get the shot or be fired. 

Though there are exceptions to a vaccine mandate, most employees likely do not fit within either of the exceptions. The two main exceptions deal with ADA disability accommodations and accommodations for sincerely held religious beliefs. 

 ADA Issues

 If a disability prevents you from getting the vaccine, you may request to be excused from getting the vaccine as a “reasonable accommodation” under the ADA. 

 However, be prepared to prove that you do have a medical condition that will prevent you from getting it.  Expect your employer to verify that you really do have a disability that will prevent you from getting the vaccine. 

 A company is not going to just take your word for it. Nor should it.  Because going unvaccinated can put others in danger, a company is well within its rights to request medical information to verify that you do have a disability when it considers your ADA reasonable accommodation request. That proof will need to be more than just saying, “my doctor said I should not get it.”

 Sincerely-Held Religious Beliefs

 Some employees request an exemption from the mandatory vaccine requirement because a sincerely held religious belief prevents the employee from receiving the vaccine. 

 Generally, this is a small part of the workforce population.  However, in recent weeks, it has expanded rapidly, with many websites starting to pop up offering “advice” to employees on how to seek this accommodation or even selling pastoral “notes” to employees.

 If you ask for a religious accommodation, know that you must show that you have a sincerely held religious belief. Be prepared to identify the specific religion.  Be prepared to explain why this sincerely held religious belief requires accommodation.

Companies are already wise to employees who “suddenly” claim to hold sincerely held religious beliefs that prevent them from getting the vaccine.

One popular request for an accommodation addresses that the vaccine was developed (in part) using fetal stem cells. Many employees claim that fact prevents them from getting vaccinated.

One employer is pushing back. It requires its employees to verify and attest that they do not take any medication or vaccine developed with the use of fetal stem cells.  This includes very popular and commonly used medicines such as Tylenol, Pepto-Bismal, Aspirin, Ibuprofen, Ex-Lax, Benadryl, and Claritin. That company wants to know how committed the employees are to the sincerely held religious belief.  If the employee takes any of those medications, an argument can be made that the employee is not necessarily all that committed to the belief.

If you intend to ask your company for religious accommodation, be prepared for questions about your request.  

If it makes you mad to provide evidence of a disability or a sincerely held religious belief, think about why your employer is asking for it.  Remember, companies owe a duty to their other employees and customers to provide a safe environment. 

If you don’t want to do support your accommodation request, you may walk with your feet. You do not have to continue to work for a company that requires you to be vaccinated.  You can quit. 

If you don’t want to quit, please remember that your company is trying to balance its duties owed to other employees and customers.  It is going to take all of us working together to get through this pandemic.  Do your part to keep everyone safe.

 

30 Years of the ADA

30 Years of the ADA

by | Aug 3, 2020 | Disability Discrimination, Discrimination, Workplace Safety

Thirty years ago, President George H. W. Bush signed the Americans with Disabilities Act into law.  This law was designed to increase access and opportunity for people with disabilities in the workplace as well as in communities. 

The ADA has been critical to the rights of disabled employees, allowing many disabled employees to find jobs, earn a living, and to make very positive contributions to their employees. It allowed employees who developed a disability after starting a job to retain their job as well.

For so many people with disabilities, they do have the ability to work when given appropriate reasonable accommodations. And they want to work.  They want to contribute.  The ADA was the stepping stone requiring employers to make reasonable accommodations instead of just terminating a disabled employee or—even more troubling—just not hiring a disabled employee at all.

Having the contributions of all—including employees with disabilities–in the workplace enriches all of us. To celebrate the 30th anniversary of the ADA, the Department of Labor has organized a yearlong campaign for disability employment called “What can you do?”  The Department of Labor has videos, public service campaigns, discussion guidelines, and many resources to educate both employees and employers about the campaign for disability employment. The website is www.whatcanyoudocampaign.org. 

With COVID-19, the ADA is even more important to millions of Americans.  Right now, it is unclear whether COVID-19 is a “disability” as the law defines it.  For some, a COVID-19 diagnosis will lead only to a very minor illness.  For others, as we have seen, it is fatal. And millions fall somewhere in between those two points.

Right now, a key concern is for those employees who suffer from underlying health concerns making them more vulnerable to severe consequences if they get COVID-19.  In these cases, many employees ask for reasonable accommodations to make sure they do not contract COVID-19 at work. 

One of the most valuable resources in determining what can be a reasonable accommodation under particular circumstances is the Job Accommodation Network website,  www.askjan.org.  This website identifies many common disabilities and potential accommodations for each disability.  For an employee who needs to ask for an accommodation, this is a good starting place to be educated about what kind of things are reasonable to request as accommodations.

For employees who fear that they are susceptible to more severe effects if they contract COVID-19, some common accommodations requested include continued remote working or appropriate personal protection equipment.  In some cases, companies are bringing employees back to the office, but an employee with a disability may continue to work remotely as an accommodation.  In other cases, an employee who must return to the workplace may ask for additional PPE above and beyond what the employer is providing if the employee has a disability. This may include things such as an N-95 mask, a face shield, or an office location that is appropriately distanced from other employees.

Many other employees express concerns about returning to work since they live with others who might have underlying health conditions that make them vulnerable to more severe effects of COVID-19.  Unfortunately, the ADA does not apply in that situation. It will only apply if the employee is the person with a disability, making him or her more vulnerable.

If you have questions about the ADA and whether you are entitled to any reasonable accommodation in the workplace, contact us.

Returning to Work in a Pandemic: ADA Concerns

Returning to Work in a Pandemic: ADA Concerns

by | Jun 16, 2020 | Family Medical Leave, Workplace Issues, Workplace Safety

As offices reopen, many people have real concerns about COVID-19 and how it affects the workplace.  The EEOC’s Technical Assistance Questions and Answer on what you should know about COVID-19 and various EEO laws is a great resource for these questions. The EEOC updates this guidance regularly, but the most current version is at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

One set of concerns deals with people afraid to return to work.  A person might have health issues making that person vulnerable to COVID-19.  Or the person may live with another person at risk due to age or underlying health issues.  The employee fears going to work and possibly bringing home germs that expose the family member to illness.

Many employees are asking what happens if they refuse to return to work because of this fear. Usually, the employee won’t have much protection if the employee refuses to return to work due to a generalized fear.  However, sometimes, the ADA may provide relief.

If an employee’s disability puts the employee at a higher risk from COVID-19, the employee may ask for a reasonable accommodation that would allow the employee to perform the job duties.  The catch is what is a “reasonable accommodation” and whether the requested accommodation creates an undue hardship for the employer.

For example, if the employee has a job that can be performed remotely, the employee could request permission to continue to work remotely even after other employees have returned to the office.  The employee must have an underlying disability, though, not just a generalized fear of exposure to COVID-19 before the employee would be eligible for a reasonable accommodation.  So, just because an employee is over age 65 or is pregnant, that alone would not be entitled to an ADA accommodation without some other disability. Also, an employee who fears exposing a family member at higher risk of severe illness from COVID-19 due to an underlying medical condition may not have accommodation under the ADA. 

That does not mean that an employee with these concerns should not ask for such an accommodation.  It just means that an employer is not required by the ADA to grant the accommodation.  Some employers might still be happy to work with the employee to address that concern. 

If the employee cannot get the accommodation of working remotely, the employee should explore other kinds of reasonable accommodations that might minimize the risk of exposure to COVID-19.  This can include getting permission to wear a mask or being allowed to work in a space appropriately distanced from coworkers. It might include asking for plexiglass shields to be installed between cube spaces. The website www.askjan.org is a good resource for workplace accommodations.

An employee can also consider whether the employee may have Emergency Paid Sick Leave or Emergency FMLA leave under the Families First Coronavirus Response Act.  However, those provisions only apply to companies with fewer than 500 employees, so many employees are not eligible for those benefits.

The laws and regulations are changing frequently. If you have questions, we can help.