The impact of COVID-19 on the health care industry can hardly be overstated. Numerous important employment law developments occurred in 2020 related to COVID-19 that impacted the industry, including guidance on mandatory vaccination, COVID-19 whistleblower claims, and claims from individuals exposed to COVID-19 against employers of employee family members. In addition, other important developments occurred outside of the COVID-19 context, including anti-racism standards from the American Medical Association (AMA), expanding state regulation of physician noncompetition agreements, important federal wage and hour guidance impacting the industry, and much more. This alert provides an overview of these key legal issues and sets forth several recommendations for health care industry employers on proactive steps to reduce employment law-related legal risks.
EEOC GUIDANCE ON MANDATORY COVID-19 VACCINATION
On 16 December 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 vaccination requirements and employee rights under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act.
The ADA permits employers to implement a qualification standard, such as a vaccination requirement, that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” To determine whether a direct threat exists, employers should conduct an individualized assessment of the following four factors: (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 the employer determines that an unvaccinated employee poses a direct threat, it must evaluate whether it can provide a reasonable accommodation, absent undue hardship, that would eliminate or reduce this risk. If such accommodation cannot be made, the employee can be excluded, but before any adverse action, such as termination, is taken, the employer should evaluate whether the employee has any other rights under federal, state, or local laws and should consult with counsel.
Similarly, under Title VII, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship. Because the definition of religion is broad, an employer should generally assume that a request for accommodation is based on a sincerely held religious belief. In certain situations, an employer…
Read More: 2021 Employment Law Developments Impacting the Healthcare Industry