The EEOC’s position on this issue is pretty clear: Federal law does not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.1.
Recent judicial rulings have agreed. As the judge in the recent Houston Methodist Hospital case held, the hospital is in the business of saving lives without infecting patients with the virus, and as such, an employer that mandates vaccines, regardless of whether it is in a safety-sensitive industry, may intend to demonstrate that it cares for all of its employees and wants to ensure a safe workplace.
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Texas recently passed two new Bills (Senate Bill 45 and House Bill 21) that increase protections for sexual harassment claimants. Each new statute goes into effect on September 1, 2021. These laws present significant changes to existing Texas law.
Definition of an “Employer”
Prior to the enactment of Senate Bill 45, the relevant portions of the Texas Labor Code applied only to employers with fifteen (15) or more employees, and only the entity could be held liable, not an individual. Under the new law, the definition of an employer has been expanded to include any person or entity who employs one or more employees, or “acts directly in the interests of an employer in relation to an employee.” This change means that many more small employers, and their owners and supervisors, will face potential liability.
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Although most people get over COVID-19 in a few weeks, some suffer lingering effects for many months. The people who suffer these lingering effects are referred to as “long-haulers” and the condition is called “long COVID”. This week the U.S. Department of Health and Human Services (“HHS”) and the U.S. Department of Justice (“DOJ”) jointly issued Guidance on how long-haulers may be protected as disabled under the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. You can find the Guidance here: https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html.
Generally, the HHS and DOJ indicate that long COVID is a physical or mental impairment and that it can qualify as a disability if it substantially limits one or more major life activities. The Guidance specifies that long COVID can qualify as a disability even its’ symptoms (i.e., headaches, shortness of breath, tiredness, heart palpitations, cough, depression, anxiety, or dizziness) come and go, as long as they would substantially limit a major life activity when the symptom is active. This is going to be problematic because many employees are going to suffer from these symptoms.
Continue reading “HHS and DOJ Issue Guidance on How Disability Laws Apply to “Long COVID”: Get Ready for More Demands for Reasonable Accommodations”