ADA in the News February 1, 2021

Can Employees Be Required to Get COVID-19 Vaccine?

As the COVID-19 vaccine filters its way down to the general public and lower risk groups, employers are wondering if they can and should require employees to be vaccinated.

According to the Pew Research Center, about 20% of Americans do not plan to be vaccinated and feel certain they will not change their minds. Early experiences with nursing home and health care workers reveal in some facilities as many as 60% of employees have refused available vaccines. If this trend translates to other business sectors, employers may be left to question how they will ever be able to return to normal operations unless they require employees to be vaccinated.

Last month, the U.S. Equal Employment Opportunity Commission issued guidance indicating employers can require employees to get vaccinated. Importantly, according to the guidance, such a requirement would not constitute an unlawful medical examination under the Americans with Disabilities Act. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19,” the EEOC reasoned, “the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not (an unlawful) medical examination.”

But as with most issues involving employment law, it’s never simple. EEOC guidance does not carry the force of law; it remains to be seen whether courts will adopt its interpretation. Moreover, given the many concerns that could be raised by objecting employees, employers should still exercise significant caution when deciding whether to mandate vaccinations.

Even if a mandatory vaccine policy is not itself unlawful, asking pre-screening vaccination questions may be. If, for example, an employer decides to directly administer the vaccine - or directly contracts with a company to administer the vaccine - any pre-screening vaccination questions could elicit information about employees’ disabilities. Such questioning may constitute an unlawful medical examination unless the employer can show the screening is job related and consistent with business necessity. To meet this standard, there must be objective evidence that an unvaccinated employee will pose a direct threat to the health or safety of others.

Employers must also be careful when requiring employees to submit proof of vaccination. Although an employer can lawfully request such proof, employers should not ask follow-up questions that could reveal information regarding employees’ potential disabilities.

Additionally, in response to a vaccination mandate, an employee may inform an employer that they cannot be vaccinated due to a medical disability. Generally, employers have a legal duty to provide reasonable accommodations to employees with disabilities. Unless the employee’s inability to be vaccinated poses a direct threat to health and safety (and this threat cannot be mitigated), the employer will likely have an obligation to accommodate the employee’s disability. Some employers, for instance, may be able to accommodate unvaccinated employees by permitting them to temporarily work from home.

Mandatory vaccination policies may - in addition to implicating the ADA - raise questions under other statutes and laws. Title VII of the Civil Rights Act, for instance, protects employees against discrimination on the basis of religion. Should an employee object to vaccination because of a sincerely held religious belief, an employer may have to accommodate this employee, too.

As employers begin to consider the implementation of mandatory vaccine policies, they are well advised to exercise caution, review state and federal employment laws, and take steps to prepare for accommodation requests.

Many employers are developing vaccine education plans to gain buy-in and support from their workforces. As we hopefully get closer to the vaccine being available to everyone who wants it, employers should be planning for how they intend to address this important issue.


“This is progress”: Amtrak To Pay Out Claims from ADA Settlement

Amtrak’s $2.25 million fund is open for claims from individuals with mobility disabilities who were unable to access its stations. The fund is the result of the 2020 settlement between the Department of Justice and Amtrak after the transportation company was found in violation of the Americans with Disabilities Act for decades.

Amtrak failed to comply with the ADA by the July 26, 2010 deadline, which gave them 20 years to do so from when the law was passed in 1990.

The complaint filed by the department alleged Amtrak “has violated and continues to violate the ADA by failing to make existing stations in its intercity rail transportation system readily accessible to and usable by individuals with disabilities.”

On the 30th anniversary of the Americans with Disabilities Act, Amtrak reached an agreement with the Justice Department to make stations accessible as well as train staff on ADA requirements.

“Transportation is the linchpin of access for people with disabilities to the full economic, social, and cultural benefits of our country,” said Eric Dreiband, assistant attorney general of the civil rights division, about the settlement last year. “The agreement is a historic victory for individuals with disabilities, Amtrak, the rule of law, and the promise of equal opportunity for all Americans.”

In a statement to CBS News, Amtrak says it spent $109 million on ADA-related design and construction improvement projects in the last fiscal year. The company said its action “not only resolves the lawsuit that was filed, but more importantly it builds upon and protects important aspects of Amtrak’s long standing ADA compliance efforts.”

Thomas Morgan plans to be one of those filing a claim. Morgan, who uses a wheelchair, faced a barrier to travel when taking a surprise trip home from Randolph-Macon College in the spring of 2016. Upon arriving at the Ashland, Virginia, Amtrak station, he found the entire facility inaccessible. Morgan was unaware there was no wheelchair access at the station, that the only way to board the train was by stairs.

“Normally I’m not a huge advocate for disability because I’d rather talk it out and not inconvenience others,” Morgan tells CBS News. “For me, my disability is not really central to my life. It only becomes apparent to me when it becomes an issue.”

Morgan contacted Amtrak, and the company installed a lift on one of the two platforms in Ashland. This was a temporary, inconsistent solution. Morgan had to contact the station prior to arrival, and occasionally the train would come on the track without the lift, stranding Morgan.

After the DOJ settlement, Amtrak will work over 10 years to design at least 135 stations to be accessible, complete construction at 90 of those stations, and have at least 45 more under construction. This will grant individuals with mobility disabilities the ability to travel freely.

“That’s awesome. I mean, this is progress to me,” said Morgan.


NBCUniversal Vows Auditions for Actors with Disabilities

Actors with disabilities will be included in auditions for each new film and television production at NBCUniversal, which becomes the second major media company to make such a commitment.

NBCUniversal said Friday that the pledge covers projects by the Universal Filmed Entertainment Group, Universal Studio Group, NBC network and Peacock streaming service.

The pledge was made in response to calls for change by the Ruderman Family Foundation, following a similar commitment the disability rights advocate received from CBS Entertainment in 2019.

"My hope is that other major studios in the industry will now see NBCUniversal and say, 'This is something that makes sense and we're also going to commit to this,'" said Jay Ruderman, head of the Boston-based foundation. Disney, Sony and major streaming services including Netflix and Amazon are among others the foundation would like to enlist, he said.

As more people with disabilities are seen in roles, "it will have ramifications throughout society," Ruderman told The Associated Press. Comcast-owned NBCUniversal signed on after a series of conversations with the foundation, he said.

The company is committed "to creating content that authentically reflects the world we live in, and increasing opportunities for those with disabilities is an integral part of that," said NBCUniversal executive vice president Janine Jones-Clark, whose portfolio includes film, TV and streaming inclusion.

Outside calls for action are important and "hold the industry accountable of the work we still need to do in order to see systemic change," Jones-Clark said in a statement.

According to the most recent foundation report, only about 22% of characters with disabilities on network and streaming shows in 2018 were "authentically portrayed by actors with disabilities." That's an improvement over 2016's finding that 5% of such TV roles went to actors with disabilities.

Actor Kurt Yaeger, a member of the SAG-AFTRA Performers with Disability Committee, lauded the new agreement. "It's what I've been pushing for 10 years," he said, given how infrequently studios and producers open the door to people with disabilities.

Yaeger, who uses a prosthetic leg because of a motorcycle accident, has appeared as a guest actor in more than 50 TV episodes, including ABC's "The Good Doctor" and Netflix's upcoming "Another Life." That's more than most people who are auditioning regularly for continuing series roles, he said, adding, "I'd like more of those opportunities for me and my fellow performers with disabilities."

While NBCUniversal's commitment is a "great start," Yaeger said he wants to see every other network and studio do the same thing and allow their progress to be monitored.

Eileen Grubba, an actor and disability activist, said NBCUniversal's action, coupled with that of CBS Entertainment, could lead to wider change. Grubba, whose credits include HBO's "Watchmen" and NBC's "New Amsterdam," already considered both companies to be leaders in disability diversity.

"The two of them together, standing up and saying, 'This will happen, this will be done,' puts pressure on the rest of the industry," said Grubba, who uses a leg brace because of childhood spinal cord damage. "This is a massive win for this community and for inclusion, and hopefully for all the people who have been in this industry many, many years without ever getting opportunities."

The growing pressure on movie and TV makers to give women, people of color and the LGBTQ community greater representation may have increased awareness of one of the country's largest and overlooked minority groups, Ruderman said.

According to the Centers for Disease Control, 26% of the U.S. population has some form of disability. Their near-invisibility on screen, both as characters and actors, influences how the community is perceived, Ruderman said.

"Not seeing people who have disabilities in film and on TV does impact society, it does shape attitudes," he said. Three decades since passage of the Americans with Disabilities Act, unemployment remains high among people with disabilities and "a lot of that has to do with stigma."

"I don't think you can mandate through legislation how people feel. But I think that entertainment can change the way people feel," Ruderman said.

Although the agreement with NBCUniversal doesn't establish hiring goals, Grubba said the value of getting a chance to audition shouldn't be undersold.

"It requires repeated attempts to get good at it," she said. "And when you're competing against people who audition 10 times a week and you're only getting in one to three times a year, if you're lucky, you don't have the same skills in dealing with the pressures and the best way to get through them."

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