In October, November, and December 2021, the EEOC published updates to its COVID-19 Technical Assistance Questions and Answers (“What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws;” https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws ).
In October, the EEOC added a new Section L, Title VII and Religious Objections to COVID-19 Vaccine Mandates, which provides guidance (including some “best practices”) for employers that require vaccination when dealing with employees and applicants who object to receiving the vaccine for religious reasons. Key points include:
- Employees and applicants must inform the employer if they are requesting an exception to a vaccination requirement because of sincerely held religious beliefs, practices, or observances; however, employees do not need to use any “magic words” such as “religious accommodation.” As a best practice, employers with vaccination requirements should inform employees and applicants how to request a religious accommodation.
- The definition of “religion” under Title VII is quite broad and protects nontraditional religious beliefs that may be unfamiliar to employers. Employers should not assume that a request is invalid because it is based on unfamiliar religious beliefs. Employers may ask employees to explain the religious nature of a belief.
- Social, political, or economic views and personal preferences do not qualify as religious beliefs under Title VII.
- Employers should evaluate religious objections on an individual basis. Generally, employers should assume that a request for religious accommodation is based on sincerely held religious beliefs, unless the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief. In that case, the employer can make a limited factual inquiry and seek additional supporting information.
- Employers should consider all possible reasonable accommodations, including telework and reassignment. Employers are not required to provide the employee’s preferred accommodation if there is more than one accommodation available. However, if an employer denies the employee’s preferred accommodation, the employer should explain the reason to the employee.
- Employers are not required to provide an accommodation that would cause undue hardship to the employer. Undue hardship should be determined on a case-by-case basis based on objective information, and the employer must be able to demonstrate undue hardship.
- A religious accommodation, once granted, is not necessarily permanent. While the obligation to provide an accommodation is a continuing obligation, changed circumstances may be considered; for example, an accommodation that was reasonable when initially granted may later become an undue hardship. As a best practice, the employer should discuss its concerns with the employee before revoking an accommodation and should consider whether there are alternative accommodations that would not impose an undue hardship.
The October update also included minor changes to a number of provisions in Section K, Vaccinations – Overview, ADA, Title VII, and GINA.
The November update added a new Section M, Retaliation and Interference. Applicants, employees, and former employees are protected from retaliation by employers for asserting their rights under the federal equal employment opportunity laws. Retaliation is the form of discrimination that is alleged most frequently in charges received by the EEOC. New Section M explains how the rights of employees and applicants are balanced against employers’ needs to enforce COVID-19 health and safety protocols. Key points include:
- Retaliation protections apply to all employees (whether full-time, part-time, probationary, seasonal, or temporary) as well as job applicants and former employees, regardless of citizenship or work authorization status.
- “Protected activity” (activity that is protected from retaliation) can take many forms, such as filing a charge, reporting alleged discrimination, answering questions during an investigation of alleged discrimination, resisting harassment, intervening to protect co-workers from harassment, refusing to carry out discriminatory orders, or requesting a reasonable accommodation due to disability or religious belief. In the context of COVID-19, this could include, for example, requesting continued telework as a disability accommodation after the workplace reopens, or requesting modified protective gear that can be worn with religious garb as a religious accommodation.
- Retaliation includes any action by an employer that could deter a reasonable person from engaging in protected activity. Examples include denial of promotion or benefits, discharge, suspension, transfer to a less desirable position or location, negative evaluation, or refusal to hire. However, retaliation can also include action that has no tangible effect on employment, as well as action that takes place outside of the workplace.
- Depending on the specific situation, a petty slight, minor annoyance, or trivial punishment probably would not be considered retaliation.
- The anti-retaliation provisions do not prevent disciplinary action for legitimate, non-retaliatory, and non-discriminatory reasons.
New Section M also addresses “interference” under the Americans with Disabilities Act (ADA). In addition to retaliation, the ADA prohibits interference with an individual’s exercise of rights. Key points include:
- Interference includes activities such as coercing, intimidating, or threatening an applicant, employee, or former employee to discourage them from asking for a reasonable accommodation or to pressure them not to file an ADA complaint.
- Employers are also prohibited from interfering with employees helping others exercise their rights under the ADA.
On December 14, 2021, the EEOC added a new Section N, COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act. Key points include:
- COVID-19 is a physiological condition affecting one or more body systems; as such it is a physical impairment. If it substantially limits a major life activity (which includes the operation of one or more major bodily functions, as well as activities such as walking, eating, or breathing), it would be a disability under the ADA. The limitations from COVID-19 do not have to last any particular length of time to be considered substantially limiting.
- COVID-19 will not always be a disability for purposes of the ADA. A person who is asymptomatic or who has only mild symptoms that resolve in a matter of weeks would not have a disability.
- Determining whether a specific individual’s COVID-19 is a disability requires an individualized assessment.
- A person who has or had COVID-19 may also be considered a person with a disability under the ADA if they have a “record of” a disability or if they are “regarded as” having a disability.
- Even if an individual’s case of COVID-19 did not constitute a disability under the ADA, a condition that is caused by COVID-19, or a pre-existing condition that is worsened by COVID-19, might be a disability.
- “Long COVID” (a/k/a “Long Haul COVID”) can be a disability if it is a substantially limiting impairment.
The EEOC has updated its COVID-19 guidance approximately 20 times since it was initially published. Employers should continue to check the EEOC’s website regularly for additional updates.
This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.