EEOC Issues Revised Publications on the Employment of Veterans with Disabilities
The U.S. Equal Employment Opportunity Commission (EEOC) today issued three revised documents that address the employment of veterans with disabilities, pursuant to EEOC Chair Janet Dhillon’s priority of providing robust compliance assistance by delivering up-to-date guidance on the requirements of antidiscrimination laws.
The documents discuss how the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) apply to veteran employees and those who employ them.
The revised publications are:
- EEOC Efforts for Veterans with Disabilities
- Understanding Your Employment Rights Under the Americans with Disabilities Act: A Guide for Veterans
- Veterans and the Americans with Disabilities Act: A Guide for Employers
Reassignment still ADA's last resort, 4th Cir. says in Lowe's ruling
Dive Brief:
- Reassignment remains the accommodation of last resort under the Americans with Disabilities Act (ADA), the 4th U.S. Circuit Court of Appeals confirmed in a lawsuit filed by a former director for Lowe's (Elledge v. Lowe’s Home Centers, LLC., No. 19-1069 (4th Cir., Nov. 18, 2020)).
- The plaintiff was responsible for, among other things, conducting store visits; this required extensive walking. Following knee surgery, the employee needed temporarily reduced hours and walking. Eventually, his doctor deemed those restrictions permanent. Lowe's suggested he use a motorized scooter, but he declined. "Lowe’s, possessing 'ultimate discretion' over the choice among reasonable accommodations, was not — in the face of [his] rejections of such an obvious and helpful offer — required to extend another." Still, when he requested reassignment instead, Lowe's said it would help him look for positions for he was qualified. But he declined to pursue demotions and was not selected for other director-level positions.
- The employee sued, alleging Lowe's engaged in disability discrimination when it declined to grant him a noncompetitive transfer. A district court granted summary judgment for the employer, and the 4th Circuit upheld that ruling, noting that the ADA considers reassignment a last-resort accommodation and does not require employers to disrupt established seniority systems. While U.S. Supreme Court precedent requires some preferential treatment to afford workers with disabilities equal opportunities, it "does not require employers to construct preferential accommodations that maximize workplace opportunities for their disabled employees," the court said. "In the ordinary 'run of cases,' reassignment in contravention of such a policy would not be reasonable."
Dive Insight:
Notably, the federal appeals courts disagree on whether the ADA requires noncompetitive reassignment and the U.S. Supreme Court has yet to decide the issue.
The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that transfers must be noncompetitive, but agrees that it would be unreasonable to reassign an employee "if doing so would violate the rules of a seniority system," either a collectively bargained system or one unilaterally imposed by management. However, if there are exceptions or other circumstances that undermine workers' expectations of consistent treatment, then noncompetitive reassignment may be reasonable despite the existence of a seniority system, according to EEOC.
The commission also agrees with courts that employers should first seek an accommodation that would enable a worker to remain in their present job, according to a guidance. Accommodations can include the removal of marginal duties, schedule changes or policy exemptions, among other things. But when no other modification is possible, employers may want to consider reassignment by weighing EEOC guidance, considering applicable court precedent and consulting with counsel, experts say.
How People With Disabilities Help The Economy Grow And Thrive
People with disabilities have been underestimated repeatedly in school and in the workforce. We should never assume that someone might see his or her disability as a tragedy. Many people with great challenges have created, built, and found tremendous success in their lives.
When I became a certified teacher, three of the most important lessons I learned from my mentors were the following:
· Labels limit
· The importance of getting to know, see, and listen to all students
· How to take content and connect it to every student’s life outside the classroom—this helps to drive emotion, and creates an opportunity for real learning
The three areas mentioned above must be addressed to help persons with disabilities thrive.
Can Employers Mandate Employees to Take a COVID-19 Vaccine?
Three pharmaceutical companies, AstraZeneca, Moderna and Pfeizer, have announced COVID-19 vaccines, which the director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, has announced could be available as early as late December 2020.[1] Governor Mike DeWine announced some Ohio health care professionals could receive the COVID vaccine as early as Dec. 15, 2020.[2] If and when these vaccines become available, can private employers require employees to take the vaccine?
Because there is no law or regulation that directly addresses this issue, employers considering a mandatory COVID vaccination policy should analyze how mandatory flu vaccination policies have been interpreted. In the absence of state or local law to the contrary, employers may require employees to get vaccinated from the flu. However, even in a pandemic, the Equal Employment Opportunity Commission (EEOC) has emphasized that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine.[3] An exemption would be considered a reasonable accommodation under the ADA unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer.
Additionally, an employee may be excused from the vaccine mandate under the religious accommodation provision of Title VII of the Civil Rights Act of 1964. An employee may be exempted if taking the shot would violate his or her sincerely held religious beliefs, practices, or observances.[4] An employer must provide a reasonable accommodation unless it would pose an undue hardship, which under Title VII is “more than de minimus cost” to the operation of the employer’s business. This is a lower standard than the undue hardship standard under the ADA.
If an exemption under either of these laws is requested by an employee, employers should engage in an interactive dialogue with the employee to determine whether a reasonable accommodation would enable the employee to continue to perform their essential job functions without compromising the safety of other employees, patients or customers. Potential accommodations could include (but are not limited to) additional personal protective equipment (PPE), moving the employee’s work station, a temporary reassignment, teleworking, or a leave of absence.[5] Although, subject to these exemptions, the EEOC does not prohibit employers from mandating vaccines, it recommends private employers consider encouraging employees to take the vaccine rather than requiring employees to take the vaccine.
It is possible the EEOC may approach the COVID-19 vaccine differently than its traditional position on mandatory flu vaccinations. From the beginning of the pandemic, the EEOC has recognized COVID-19 meets the higher threshold “direct threat standard,” which allows employers to conduct more extensive medical inquiries and controls than normal.[6] As the EEOC noted in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, COVID-19 supports a finding that “a significant risk of substantial harm would be posed to having some with COVID-19, or symptoms of it, present in the workplace at the current time.” Further, other federal agencies have issued guidance documents in support of COVID-19 vaccinations. For example, the Centers for Disease Control (CDC) has issued guidance recommending vaccination for critical industries, including health care and community support agencies.[7] Additionally, the Center for Medicare & Medicaid Services (CMS) issued an Interim Final Rule to help remove administrative barriers creating potential delays to patient access of a COVID-19 vaccine.[8]
Employers considering mandatory vaccination policies should consider relevant EEOC, CDC, and state guidance.