During The Pandemic, If An Employee Requests An Accommodation For A Medical Condition, Either At Home Or In The Workplace, May An Employer Still Request Information To Determine If The Condition Is A Disability?
Yes, under the ADA, an employer can request certain medical certifications that the person claiming a medical exemption actually does have a disability. Under the ADA, “disability” is defined as a physical or mental impairment that substantially limits a major life activity. One of the major life activities, obviously, is working. So, if your disability means getting the vaccine would interfere with your ability to work, then yes, your employer may require some medical certifications to verify that disability.
If you have COVID or you have some type of a complication with the COVID virus or with the vaccine, and you request accommodation, your employer would be within their rights to get certain medical information from your doctor certifying that you have a disability and that the proposed reasonable accommodation would be effective in fulfilling the mandate while not damaging your health.
Do State Bans On Vaccine Passports Impact Employer Policies In Florida?
Interestingly, the vaccine passport statute here in Florida impacts mostly customers and the public. So for example, let’s say I want to go to a store to buy a t-shirt and the workers at the store tell me they need to see a vaccine passport if I want to come inside. That’s deemed to be unlawful under a state statute.
Now, if I’m an employer, I can mandate that because there’s no real right to necessarily work in Florida, I can mandate a vaccine passport requirement to enter the workplace. In other words, an employer can dictate whatever policies that they want to—right, wrong, or different. The courts aren’t going to act as a secondary human resource department and police particular employment policies. As long as the employment policy isn’t discriminatory or violative of any of the other statutes—specifically, discriminating against the person’s membership or a particular class—then the employment rule would be found to be lawful.
In other words, you can’t exclude patrons or customers from stores in Florida because they refused to show you a vaccine passport. This generally deals with public or public-type accommodations like grocery stores, retail stores, and hotels.
So, a hotel couldn’t mandate that you be vaccinated to stay at the hotel. However, they may possibly be able to mandate that the people working there be vaccinated. The reason is that you’re free as an employee to quit or move or go to another job. As a part of the community or public, on the other hand, you do not really have that option. That is the distinction, and the source of the logic that the vaccine passports impact the customers of a store rather than the employees.
Does An Executive Order Governor Ron Desantis Issued Banning Businesses In The State From Requiring Customers To Prove They Have Received The COVID-19 Vaccination Before Receiving Services Mention Employees At All?
Yes, this EO does touch on employees. Though the law is still fluid and evolving, it has generally been accepted that employers can mandate vaccine proof from employees, but cannot do so for people walking into the store as customers.
This once again complicates the effectiveness of the vaccine mandate. If you can’t mandate that your customers be vaccinated but you can mandate that your employees are vaccinated, you still can’t fully protect your employees, because they have to interact with customers.
Can Employers Offer Employees An Incentive For Voluntarily Receiving A Vaccination So Long As The Incentive Is Not So Substantial As To Be Coercive?
The EEOC guidance on this question is that yes, employers may offer employees an incentive to voluntarily get the vaccine as long as it is not intended to be coercive. It’s considered more of kind of a reward system for those that got the vaccine rather than a punitive-type punishment for those who didn’t get the vaccine.
Once again, this is somewhat uncharted territory. We’ve had vaccine mandates before but nothing with so much urgency or emergency, where we need to get people vaccinated as quickly as possible. So things are still up in the air when it comes to defining exactly how close to punitive you can go. Generally, though, I’ve seen employers giving $50 bonus cards or something similar to people who get vaccinated, and so far that’s deemed to be lawful.
Should An Employee Contact An Employment Law Attorney Regarding COVID-19 Vaccine Employment Related Concerns?
Absolutely. This is a new area of law that’s constantly changing every single da. It would be in your best interest as an employee to at least speak with an attorney and get some information on the current status of the law. It’s important to remember that what may have been right in October of last year might not be the correct information in October of this year. Also, if you’re relying solely on website articles or Google to get information, you may be looking at some bad information that’s not quite up to date in any case.
The best way to stay caught up is to give a call to a local labor and employment lawyer who deals with this kind of stuff all the time and would be able to quickly give you the best information available.
For more information on Employment Laws & COVID Vaccination In Florida, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 546-7608 today.