EEOC Issues Guidelines Regarding COVID-19 Vaccination of Employees

On December 16, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) published revised guidelines regarding COVID-19 vaccination for employees.  While the guidelines permit vaccination of employees, there are significant legal issues about which employers should be aware and many potential pitfalls.  Here are some key takeaways:

  • Employers need to be mindful of pre-screening vaccination questions. EEOC guidance indicates that administration of the COVID-19 vaccine itself is not a “medical examination” which violates the Americans with Disabilities Act (“ADA”). However, employers need to be mindful of pre-screening vaccination questions that may elicit information about any employee disability-related issues.  Indeed, employers are limited to pre-screening questions that are “job-related and consistent with business necessity” meaning that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive the vaccination, will pose a direct threat to the health or safety of her or himself or others.”  Exceptions to this requirement are when (1) the employee voluntarily chooses to get the vaccine; or (2) the employee gets the vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.” 
  • Confidentiality and Health Insurance Portability and Accountability Act (“HIPPA”) Compliance. Employers need to maintain confidentiality about any medical information learned about their employees and should be mindful of compliance with HIPPA.
  • Employers may require proof of vaccination. Employers may require proof that their employees received the COVID-19 vaccine without violating civil rights laws or the ADA.
  • Disability-Related Concerns of Employees. If an employee declines vaccination due to disability-related concerns, an employer may prohibit an unvaccinated employee from the workplace if the employer can demonstrate the employee “would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”  This analysis is conducted on an individualized case-by-case basis utilizing the following factors: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
  • Religious-Related Concerns by Employees.  If an employer requires COVID-19 vaccination, the employer must provide reasonable accommodations to employees who are unable to receive the vaccine due to a “sincerely held religious belief, practice or observance,” unless providing such accommodations would pose an undue hardship under Title VII of the Civil Rights Act.

We expect that legal guidance regarding COVID-19 vaccination will continue to be fluid as the vaccination becomes more readily available and anticipate that the EEOC will provide additional guidance in the upcoming months pertaining to COVID-19-related employment law issues.  If you are experiencing issues in the workplace due to COVID-19 and/or need guidance on how to navigate COVID-19-related employment law issues, please do not hesitate to contact Curcio Mirzaian Sirot LLC.

* Frank A. Custode, Esq. is a Partner and Chair of the Employment Practice Group at Curcio Mirzaian Sirot LLC.

 

Why truck accidents differ from standard auto accidents

Being involved in an auto accident in New Jersey can be complicated, especially commercial vehicle mishaps. Accidents between two standard vehicles are commonly settled differently from those involving commercial trucks because truckers must adhere to certain DOT requirements, which means that they can have a greater burden of fault when the case is finalized. There are two potentially important additions to a truck accident claim.

Vicarious liability

Vicarious liability is the term for third-party responsibility when an accident occurs. This can apply in a truck accident because trucking companies can be held liable for a personal injury in certain instances when there is evidence that the driver’s employer contributed to the accident due to company policy or orders. This can mean that a truck accident claim is much more valuable in terms of whole damages than a standard collision.

New Jersey modified comparative negligence

Another issue is that New Jersey has a unique negligence law when accident claims are settled. While those who are over 50% responsible for their own accident injuries can be denied any financial recovery, those who are under 40% at fault are entitled to 100% of their total accident damages. Truck drivers are required to maintain considerably more liability protection than a standard vehicle owner, and the addition of company responsibility means that they must contribute to the total damage payout as well.

How an attorney may help

The problem that injured victims have with trucking accident claims is that it typically takes legal action to force the trucking company to pay their portion of any financial recovery. Trucking companies are notorious for fighting these claims. An experienced personal injury attorney may help ensure that all negligent actors are held responsible and keep the trucking company and insurers honest in claim payments.