NEW YEAR DIVERSITY, EQUITY, AND INCLUSION UPDATE
NEW YEAR DIVERSITY, EQUITY, AND INCLUSION UPDATE
January 4, 2021
Matt Glowacki, Diversity & Inclusion Chair
Jefferson County HRMA
Coffee House owners say state rules make it impossible for some people with disabilities to work or shop in indoor public places due to inability to safely wear a mask.
Grace Fecteau, who served in the Army and was deployed in the war in Iraq for 15 months, has a disability connected to her service. She had been granted an accommodation by the state allowing her to work at the coffee shop without wearing a mask — as long as she remained behind a non-porous Plexiglas shield installed on their counter which they said surrounds what was her workspace.
But now, she says that accommodation, which had been negotiated with state officials and approved by the Maine Center for Disease Control, has been eliminated by Gov. Janet Mills’s most recent executive orders. Among the changes are the requirement that everyone, even people with disabilities, wear a face covering while in indoor public spaces.
When they learned that accommodation would no longer be allowed just before Christmas, they decided they could no longer run their business.
“We are extremely disappointed and frustrated with this decision to remove some human beings from the public,” Justin Fecteau said in an email in response to questions about the closure of the small business. “Not allowing accommodations is contrary to the science and (the state’s) previous statements.”
The Fecteau’s also noted the new executive orders also mean people with disabilities who are unable to wear masks are no longer allowed to enter indoor public areas, such as to shop or — in their case — work.
State officials say the spread of COVID-19 has gotten so bad the face covering requirement was needed — even for people with disabilities.
Jackie Farwell, director of communications for the state Department of Health and Human Services, said the federal Department of Justice has stated that the Americans with Disabilities Act “does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.”
She also noted the Maine Attorney General’s Office and Department of Health and Human Services provides guidance for such situations.
“The Governor’s executive orders do not prohibit offering reasonable accommodations,” states that guidance. “Such accommodations may include offering the option of a face shield, allowing for take-out or curbside service, or use of the services of a personal shopper in the store. Due to the direct threat to public health and safety, however, no such accommodation may make it permissible for any person to enter or remain in any indoor setting without a face covering.”
Farwell said the Maine Center for Disease Control has worked to accommodate the Fecteaus needs. She said they provided additional options, such as offering curbside service or delivery, or having staff who are able to wear face coverings serve customers.
Alaska Airlines to Ban ‘Emotional Support’ Animals Starting January 11
Alaska Airlines announced on Tuesday that it will no longer allow passengers to bring emotional support animals on its aircraft for any reservations made after January 11. The airline is the first to ban emotional support animals following new guidance from the U.S. Department of Transportation about what kind of animals should be allowed on passenger planes.
The new rules will not apply to dogs that are trained to perform specific tasks, such as guide dogs for people with visual impairments. But the rules will apply to “emotional support” monkeys, peacocks, and snakes — all things that people have actually tried to bring on aero planes in recent years.
“Effective Jan. 11, 2021, Alaska will only transport service dogs, which are specially trained to perform tasks for the benefit of a qualified individual with a disability,” Alaska Airlines said in a statement posted online.
The Department of Transportation released new rules in early December that were celebrated by some people who complain that unscrupulous people had been using “emotional support” as an excuse to bring their untrained and undisciplined pets on planes without a real need. But disability rights groups warn that the new restrictions may hamper those with disabilities from enjoying equal access to the country’s transportation infrastructure.
“Once again, in an almost systemic manner, DOT has decided to prioritize the airline industry and corporate interests over the rights afforded to people with disabilities under the law,” Curt Decker, executive director of the National Disability Rights Network, said in a statement earlier this month after the Department of Transportation issued its new guidance.
“While it is no secret that we still remain far from a truly accessible transportation system in this country, the DOT rule will only serve to exacerbate existing inequities for people with disabilities participating in air travel and will instead almost exclusively accommodate the interests of the airline industry,” Decker continued.
Alaska Airlines announced that passengers will now be required to complete an online form swearing that their animal is a “legitimate service dog” and has been properly trained not to cause a disturbance on the flight.
Guests will be required to complete a DOT form, which will be available on AlaskaAir.com beginning Jan. 11, attesting that their animal is a legitimate service dog, is trained and vaccinated and will behave appropriately during the journey. For reservations booked more than 48 hours prior to travel, guests must submit the completed form via email. For reservations booked less than 48 hours prior to travel, guests must submit the form in person to the Customer Service Agent upon arrival at the airport.
There are still plenty of questions about what kind of animals will be allowed on board for passengers with psychiatric conditions and Alaska Airlines hasn’t been terribly specific yet in that regard. We’ve reached out to Alaska Airlines for more clarity on the new rules and will update this post if we hear back.
Other U.S.-based airlines have yet to announce changes to their official rules on service animals but they’re expected to follow suit soon.
“This regulatory change is welcome news, as it will help us reduce disturbances onboard, while continuing to accommodate our guests travelling with qualified service animals,” Ray Prentice, director of customer advocacy at Alaska Airlines, said in a statement.
Employers have the legal right to mandate coronavirus vaccines
Companies who mandate coronavirus vaccines are not in violation of federal laws — including the Americans with Disabilities Act of 1990, the Occupational Safety and Health Act of 1970, and Title VII of the Civil Rights Act of 1964.
Employers have the legal right to mandate that their employees receive a COVID-19 vaccination, according to guidance released by the U.S. Equal Employment Opportunity Commission on Dec. 16.
That's because employers are allowed to set "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace" — which includes some vaccines.
There are exceptions for employees with disabilities or "sincerely held" religious beliefs, categories of workers who are protected by the ADA and Title VII.
In those instances, employers must prove that an unvaccinated employee poses a “significant risk of substantial harm to the health or safety of the individual or others" in the workplace and attempt to provide them with "reasonable accommodation."
If there is no reasonable accommodation, though, it is lawful for the employer to "exclude the employee from the workplace" — and in some cases, terminate them.
As for the Occupational Safety and Health Administration, a regulatory agency that sets and enforces protective workplace safety and health standards, the agency has not yet issued guidance on mandatory coronavirus vaccines.
In the past, though, both the EEOC and OSHA have ruled that it is legal for employers to mandate flu vaccines, per the National Law Review. There is no indication that they will decide differently on coronavirus vaccines.
EEOC answers questions about COVID-19 vaccine mandates
Employers that have been wondering whether they can or should require employees to receive a COVID-19 vaccine now have some answers to their questions. The federal Equal Employment Opportunity Commission recently provided important guidance to employers on these issues. The EEOC’s guidance, entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, is a must-read for any employer considering mandating vaccination against COVID-19.
In its guidance, the EEOC explains that a vaccine is not considered a medical examination, and that asking employees whether they have been vaccinated is not a disability-related inquiry. However, when a vaccine is administered, certain screening questions are asked to determine whether the individual can safely receive the vaccine. The EEOC cautions that these pre-vaccination screening questions, when asked by an employer or a contractor on behalf of an employer, may be disability-related inquiries. This is because the screening questions are likely to elicit information about a disability. Likewise, asking employees questions about why they have not been vaccinated may be disability-related inquiries because the answers to such questions could also disclose disability-related information.
What this means for employers is that if they administer a COVID-19 vaccine to employees, or contract with a third-party to do so, the employer must be able to show that the pre-vaccination screening questions are “job-related and consistent with business necessity.” To make this showing, the employer would need to establish that it has a reasonable and objective belief that an employee who does not receive the vaccine will pose a “direct threat” to the health or safety of that employee or others. When determining whether an unvaccinated employee will pose a “direct threat,” employers are required to consider the duration of the risk posed by the unvaccinated employee, the nature and severity of the potential harm an unvaccinated employee could cause, the likelihood that the potential harm will occur, and the imminence of the potential harm. The EEOC has stated that a conclusion that an unvaccinated employee would pose a “direct threat” necessarily includes a determination that an unvaccinated person would expose others to COVID-19 at work.
There are two ways that employers can avoid the requirement of making a “direct threat” showing. They are: 1. by encouraging but not mandating that employees be vaccinated; or 2. by requiring that employees receive a vaccine administered by a third party with which the employer does not have a contract, such as the employee’s primary care physician or a pharmacy.
Employers that mandate vaccination may be able to exclude an unvaccinated employee from the workplace. However, employers can only do so if there is no way to provide the employee with a reasonable accommodation that would reduce or eliminate the risk, without undue hardship to the employer.
Under both the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, an employee with an underlying medical condition or a sincerely held religious belief that prevents the employee from receiving the vaccine, is entitled to an exemption from a vaccine mandate as a reasonable accommodation, barring an undue hardship to the employer. Therefore, if an employee requests an exemption from a vaccine mandate, the employer must engage in an interactive process to determine whether an exemption is a reasonable accommodation. If not, the employer must work with the employee to determine whether there are other reasonable accommodations that could be made. Measures such as providing additional PPE, adjusted schedules, telecommuting, job transfers, permitting the employee to use paid time off to search for a new job, assisting the employee with a job search, or imposing additional infection control measures such as wearing a mask at all times, are examples of measures that might be reasonable accommodations, depending on the circumstances.
Employers do not violate the Genetic Information Nondiscrimination Act’s (“GINA”) prohibitions on using, acquiring, or disclosing genetic information, by administering vaccinations or mandating proof of vaccination. However, the EEOC warns employers that administering vaccines or requiring proof of vaccination may violate GINA if an employee’s genetic information is disclosed in the process.
Finally, employers must remain mindful of their obligations to protect and maintain the confidentiality of any medical information they may obtain as part of a vaccination program.
Because the issues surrounding whether to mandate or simply encourage COVID-19 vaccinations are complex, employers should consult with experienced employment counsel when deciding whether and how to implement a COVID-19 vaccination program.