ADA Protections for Virus Long Haulers?; Pay Attention to the New COVID-19 Rules; Arlington Magazine Recognizes DiMuro and Ginsberg
By Jonathan R. Mook
The nature of the COVID-19 outbreak continues to shift, with the so-called fourth wave straining healthcare systems in many communities. Recognizing the changes, Virginia’s Department of Labor and Industry (DOLI) has imposed new coronavirus workplace requirements affecting all employers within the Commonwealth. Building on its existing standard for infectious disease prevention, first put into action in January 2021, the Virginia Safety and Health Codes Board recently issued amendments, which Governor Ralph Northam approved and which became effective in September 2021.
In some ways, the new COVID-19 requirements have simplified the safety measures you must follow by establishing one set of rules applicable to all workplaces, with expanded mandates only for healthcare facilities and those deemed to be “higher-risk” workplaces. And the amendments make clear that by following current guidance and recommendations from the U.S. Centers for Disease Control and Prevention (CDC), you will be considered as acting in compliance with the Virginia standard.
In addition to simplifying some previous safety requirements for Virginia employers, the amended standard does impose some important new rules you need to follow.
Masking. The amended standard takes into account the delta variant’s more contagious nature by requiring every employer located in CDC-designated areas of substantial or high community transmission to have all employees (whether vaccinated or not) wear face masks. The only exceptions allowed are when:
- An employee is alone in a room or actively eating or drinking (with unvaccinated individuals keeping at least six feet away);
- Seeing someone’s mouth is important (such as communicating with a hearing-impaired person);
- Because of a disability, an employee can’t wear a mask; or
- Wearing a mask would pose a work hazard.
At the present time, every Virginia county or city is designated as being located in an area of substantial or high community transmission. Accordingly, the masking requirements presently apply statewide.
Vaccination surveys. Although the amended standard doesn’t impose any mandatory vaccination or testing requirements, you still should survey the COVID-19 vaccination status of your employees and take additional precautions to protect individuals who aren’t fully vaccinated. In responding to the survey, your employees need not present proof of vaccination. A written affirmation about vaccine status should be sufficient.
Protecting unvaccinated workers. For employees who report they aren’t fully vaccinated, you must take steps to ensure they are able to maintain physical distancing. Thus, you should post signs or display other visual cues to remind them of the need to physical distance. You also should decrease workplace density by limiting the number of employees in areas of the worksite.
Handling COVID-19 cases. All Virginia employers must institute policies and procedures to ensure employees with confirmed or suspected COVID-19 infections don’t enter the workplace and remain out according to the CDC guidelines. If there’s a confirmed COVID-19 case, you must notify other potentially exposed individuals, while keeping the employee’s identity confidential.
Confidentiality. An employee’s vaccination status as well as a positive COVID-19 diagnosis must be treated as a confidential medical record and shouldn’t be shared with anyone who doesn’t need to know.
Policies and procedures. All Virginia employers need to put in place new policies and procedures that conform to the amended standard. The policy must include a method to receive and resolve anonymous complaints of policy violations. It also must specifically require employees to report if they are experiencing symptoms consistent with COVID-19 or have been diagnosed with COVID-19 so you may take the appropriate steps to ensure the safety of all your employees.
Reporting. If you have two or more positive cases in the same workplace within a 14-day period, you must report it to the Virginia Department of Health and the DOLI.
“Higher risk” workplaces. If you have (1) nonvaccinated employees, (2) locations in areas of substantial or high community transmission, or (3) otherwise at risk employees (such as those with compromised immune systems), you will be deemed to have a “higher risk” workplace. The amended standard requires employers with 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan and to train employees on the plan by November 7, 2021. (Fully vaccinated employees may be provided written information in lieu of training on the amended standard as well as site-specific procedures that will be followed in conformity with the standard’s requirements.)
The amended standard imposes significant new requirements on all Virginia employees to curb the spread of COVID-19. Therefore, you should take steps now to implement the new rules and, where appropriate, update your current policies and procedure.
To ensure you are in compliance, it’s always advisable to consult with experienced employment counsel who can assist you in implementing the new requirements and, additionally, help you to respond to COVID-19 issues as they arise. The last thing you want to deal with in these difficult times is a DOLI enforcement action for failure to maintain a safe workplace.
Jonathan R. Mook is a partner with DiMuroGinsberg, P.C., in Alexandria, Virginia. For more information about Virginia’s amended standard and best practices in developing policies and effective procedures to ensure compliance with the state’s COVID-19 workplace safety requirements, please contact firstname.lastname@example.org.
Did You Miss the Stafford Webinar on 9/22?; Has COVID Slowed the Fastest Civil Trial Court in the Land?; Virginia Enacts Enhanced Protections for Disabled Employees; What to Do When COVID-19 Long-Haulers Seek Exemptions from Vaccine Mandates
By: Jonathan R. Mook
Since the 1980s, Virginia has prohibited employment discrimination against disabled workers under the Virginians with Disabilities Act (VDA). Accordingly, it’s understandable many employers in the state may have overlooked critical amendments to the Virginia Human Rights Act (VHRA) enacted by the legislature this year and signed into law by Governor Ralph Northam. The amendments, which took effect on July 1, give additional legal protections to persons with disabilities and provide stronger remedies to those who have been discriminated against.
New accommodation requirements
As was the case under prior Virginia law, employers with five or more workers must provide reasonable accommodations to disabled employees unless doing so would create an undue hardship. The new legislation, however, imposes specific requirements on employers in reasonably accommodating employees, which weren’t previously included in the VDA.
You now have an affirmative obligation to engage in a “timely, good-faith interactive process” with disabled employees who request a reasonable accommodation. And you may not require them to take unpaid leave as an accommodation if another reasonable solution is available.
Undue hardship analysis
In determining whether an accommodation creates an undue hardship, the new amendments to the VHRA specifically state you should consider:
- Nature of the operation and size of the facility;
- Proposed accommodation’s cost;
- Possibility the same accommodations may be used by other employees; and
- Safety and health issues.
Additionally, there is now no dollar limitation on how much you may need to spend to provide a required reasonable accommodation. The legislature eliminated the former rebuttable presumption that any accommodation exceeding $500 imposed an undue burden on employers with fewer than 50 employees.
The new legislation further requires you to post information about the rights of employees with disabilities in a conspicuous location at the worksite and in any employee handbook.
The information also must be provided to new employees when they start their jobs and to any employee within 10 days after she informs you she has a disability.
Finally, should you fail to follow the requirements of the new legislation, employees with disabilities now have greatly enhanced remedies. If they believe they have been discriminated against in violation of the statute, they will first need to file with the Virginia Office of Civil Rights. But upon the issuance of a right-to-sue notice, they may file a lawsuit in state court and request a jury trial.
Moreover, if you are found to have violated the statute, you may be liable for compensatory damages (without any limitation on the amount), back pay, attorneys’ fees, and other relief.
In many ways, the new Virginia protections for employees with disabilities are greater than afforded by the federal Americans with Disabilities Act (ADA). Hence, in the future, employers charged with violating a disabled employee’s rights will likely have the case litigated in state court before a jury, with the employer facing the possibility of unlimited damage awards.
It’s critically important for Virginia employers to become familiar with your obligations under the new amendments to the VHRA protecting individuals with disabilities. Make sure to provide your employees with notice of the new law’s provisions. Also remember to engage with an employee with a disability who requests a reasonable accommodation. That way, if any questions arise later, you can document the steps you took to comply with your statutory obligations.
Given the enhanced remedies available to employees under the new VHRA amendments, you are well advised to consult with experienced employment counsel to ensure you are fully complying with the new Virginia protections for individuals with disabilities. You don’t want to discover you haven’t been adhering to the new law’s requirements only after a discrimination charge or a lawsuit has been filed.
Jonathan R. Mook is an attorney with DiMuroGinsberg, P.C. in Alexandria, Virginia. You can reach him at email@example.com.
By Allen Smith, J.D. September 20, 2021
COVID-19 long-haulers—those experiencing long-term effects of COVID-19—who seek disability-related exemptions from mandatory vaccination policies are straining employers’ accommodation processes.
The Occupational Safety and Health Administration’s (OSHA’s) anticipated emergency temporary standard—which will mandate employees of businesses with at least 100 workers get vaccinated or submit to weekly testing—will result in more employers requiring vaccines. OSHA’s rule will almost certainly affirm that employers must accommodate employees who refuse to be vaccinated based on a medical exemption or sincerely held religious belief, said Paula Ketcham, an attorney with Schiff Hardin in Chicago. With the rise of the delta variant, more small employers also are starting to mandate vaccinations.
What if an employer believes that a COVID-19 long-hauler is requesting an exemption simply because the person is opposed to vaccinations rather than having a medical condition that would put that person at risk if he or she was vaccinated?
“Employers should always balance empathy for its staff with the safety of its overall workforce,” said David Epstein, SHRM-SCP, director of domestic human resources at Doctors Without Borders in New York City.
“Those who ask for an exemption from the vaccine should be afforded a pathway to apply for an exemption for medical reasons, and the required interactive dialogue should take place as is required” by the Americans with Disabilities Act (ADA), Epstein noted. “After that dialogue takes place, there are two options: a reasonable accommodation, which could include working remotely, or termination of employment if your company requires the vaccine and working remotely causes an undue hardship under the ADA.”
Featured Resource Center COVID-19 Vaccination Resources
The interactive process allows employers to collect information to make an intelligent and informed decision on an accommodation request, said Peter Petesch, an attorney with Littler in Washington, D.C.
If long-term effects of COVID-19, also known as “long COVID,” are not already known or obvious, the employer may request medical documentation to determine if the condition is an ADA disability and, if so, if there is a reasonable accommodation, said Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md. Long COVID-19 can rise to the level of an ADA disability.
“No two situations are necessarily identical,” Petesch said. “Everything will depend on the medical information that an employee furnishes through their health care provider in connection with a request.”
Employers should not play doctor, cautioned Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. “Although some studies indicate that vaccination may actually assist in mitigating the symptoms of long COVID-19, rather than causing any harm, the assessment of a long-hauler’s request to be exempted from vaccination should be done by a medical professional—not the employer,” he said.
“Ask the employee to provide medical documentation from his or her physician that the employee would be put at risk by being vaccinated,” Mook continued. “If an employee does this and an employer still has a question as to the legitimacy of the request, I usually recommend that the employer retain a physician knowledgeable in the field to act as a consultant to assess the documentation of the employee’s doctor.”
If, as a result of that assessment, the medical expert indicates that additional information is needed, the employer has a basis to request further medical information from the employee. “This entire process should be documented, as the initial stage in the ADA interactive process,” he said.
If the employee can’t provide any information as to why the medical condition prevents him or her from receiving the vaccine and instead can articulate only a generalized fear of the vaccine, that is not sufficient to trigger an employer’s obligation to provide an accommodation under the ADA, said Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City.
Employers may have difficulty determining what is reasonable medical care for an underlying condition, she noted. “Further, it is certainly possible that individuals with the same condition will receive different advice from their health care providers,” Garofalo said.
Long COVID-19 manifests in a variety of ways, so some people may have it severe enough to qualify as a disability and some may have a less severe version, she added. “As a result of these variances, some individuals with long COVID may request exemptions, while others receive the vaccine,” Garofalo said.
“If the medical documentation is sufficient, then an employer should engage with the employee about how the employee can perform his or her job without putting the employee or others at risk due to the unvaccinated status of the long-hauler,” Mook said.
- Wearing a mask at work with testing on a periodic basis.
- Working in an area where the employee will not come in close contact with other employees.
- Remote work.
“Changing or limiting an employee’s location or interaction with others must be done with care,” he said. “You do not want to single out or stigmatize an employee who is being accommodated.”
Many employers are relying on regular testing as an option, noted Jesse Dill, an attorney with Ogletree Deakins in Milwaukee. But an employer may incur significant costs to provide regular testing, and monitoring can result in administrative headaches.
“With respect to a mandatory vaccination policy, it seems there would be little room for unpaid leave as an accommodation that the employer must provide,” Dill added. Leave is an accommodation of last resort. “There is not a certain end date to the pandemic, which makes a request for leave as an accommodation to a mandatory vaccination policy as seeking indefinite or long-term leave,” which the ADA doesn’t require.
In addition, COVID-19 long-haulers who claim they should have an accommodation because they have natural immunity due to already being infected may be out of luck. A claim of natural immunity does not seem likely to meet the definition of an ADA disability, Dill said.
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