Deanna Krokos is a student at Harvard Law School
The Equal Employment and Opportunity Commission issued guidelines this week allowing employers to require workers receive the COVID-19 vaccine before returning to the workplace without implicating the Americans with Disabilities Act. Employers are authorized to use vaccine-related prescreening questions but must show the questions are “job related and consistent with business necessity” and avoid specific disability-related inquiries. Before excluding unvaccinated workers, employers must show the worker would post a “direct threat” to workplace safety that “cannot be eliminated or reduced by a reasonable accommodation.” Under the normal ADA-accommodations process, workers are entitled to reasonable supports that don’t impose an “undue burned” or “hardship” on their employer, and EEOC specifically contemplates extended telework arrangements as a reasonable solution to bar unnecessary/discriminatory terminations. The guidance also addresses religious protections, though the religious accommodations protections are significantly less robust than the ADA’s protections.
This weekend, the Washington Post reported on a workers compensation crisis in Virginia. As cases surge, first responders are contracting the disease in record numbers and struggling to access support. Over 50 firefighters in Fairfax County contracted the virus, but union official report little to no success with workers compensation claims. The Virginia workers compensation office has only approved 195 of the 2,080 filed coronavirus-related claims. Even where a workplace suffers an “outbreak” with several reported cases, the virus is often determined a non-covered “ordinary disease of life,” leaving workers with few options outside short-term sick leave for what’s proven to be a grueling recovery. The Virginia House of Delegates voted overwhelmingly to designate coronavirus infections as an occupational disease for first responders, but the legislation died in the VA Senate.
Months into the COVID-19 pandemic and its outsized impact on vulnerable workers, researchers at the National Employment Law Project and EARN network released a comprehensive report laying out how to build a “just and inclusive recovery for all workers.” The report centers on immediate health and safety protections, funding to state and local governments providing vital services, and promoting wage growth and bargaining rights to empower workers disproportionately harmed by this recession.
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June 20
Three state bills challenge Garmon preemption; Wisconsin passes a bill establishing portable benefits for gig workers; and a sharp increase in workplace ICE raids contribute to a nationwide labor shortage.
June 19
Report finds retaliatory action by UAW President; Senators question Trump's EEOC pick; California considers new bill to address federal labor law failures.
June 18
Companies dispute NLRB regional directors' authority to make rulings while the Board lacks a quorum; the Department of Justice loses 4,500 employees to the Trump Administration's buyout offers; and a judge dismisses Columbia faculty's lawsuit over the institution's funding cuts.
June 17
NLRB finds a reporter's online criticism of the Washington Post was not protected activity under federal labor law; top union leaders leave the Democratic National Committee amid internal strife; Uber reaches a labor peace agreement with Chicago drivers.
June 16
California considers bill requiring human operators inside autonomous delivery vehicles; Eighth Circuit considers challenge to Minnesota misclassification law and whether "having a family to support" is a gendered comment.
June 15
ICE holds back on some work site raids as unions mobilize; a Maryland judge approves a $400M settlement for poultry processing workers in an antitrust case; and an OMB directive pushes federal agencies to use union PLAs.