H&L Quarterly – January 2021

01 Jan H&L Quarterly – January 2021

EEOC Issues Important Vaccine Guidance

On 16 December 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance that contained new information about Covid-19 testing and other new employment concerns that have arisen as a direct result of the Covid-19 pandemic. Remember that the EEOC is responsible for the enforcement of the all Federal anti-discrimination law, which includes the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act.

Within the newly-issued guidance, the EEOC took the position that Federal law is not violated if an employer requires their employees to undergo a Covid-19 vaccine before returning to work. While the ADA prohibits employers from performing “medical examinations” of their employees, the EEOC’s new guidance stated that requiring an employee to be vaccinated cannot be defined as a “medical examination” because “the employer is not seeking information about an individual’s impairments or current health status.” Additionally, employers can require that employees produce documentation confirming their vaccination status, because this would not constitute a “disability-related inquiry”. Such inquiries remain prohibited under the ADA.

It is also important to remember that Title I of the ADA applies to private employers with 15 or more employees, as well as to state and local government employers, employment agencies, and labor unions.

The EEOC did concede in their updated guidance that the ever-evolving composite of laws and regulations which employers have to comply with during this pandemic can be confusing, therefore it was confirmed that:

“The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.” (Emphasis added).
 
For access to the most recent guidance you can click on the link below, or you can view all of the EEOC’s material related to Covid-19 at www.eeoc.gov/coronavirus.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

WORKERS’ COMPENSATION STATE OF AFFAIRS

Since the very beginning of the Coronavirus pandemic, those of us involved in the Michigan workers’ compensation system have been dealing with uncertainty as to how and when our courts will reopen. Hanba & Lazar has always taken the position, as a firm, that we support a safe return to the full operation of our court system, including in-person hearings. Our view has repeatedly been made clear to the judges of the workers’ compensation court system, as well as to any members of the Michigan workers’ compensation administration that are willing to listen. As time has passed, we have learned that in general, plaintiff attorneys also support the resumption of in-person court hearings. This is especially true as it relates to potential trials, and we believe that the majority of all workers’ compensation attorneys do not believe that trials conducted virtually would be either fair or effective. It is true that some attorneys and even some members of the Michigan workers’ compensation administration would support trials being conducted virtually. However, as to our current status, we have not received any concrete information regarding the resumption of in-person hearings. Similarly, no information has been disseminated regarding virtual trials either. We are therefore forced to assume that until we are told otherwise, all hearings will continue to be conducted via telephone, as they have been since March 2020. If any information becomes available as to how or when our current situation will change, you can expect that we will advise you promptly.  

Submitted by Jonathan Rea