Tag Archives: Covid19

Can Employers Require Employees to Get the COVID-19 Vaccine?

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Happy New Year! 

Moving on from 2020 does not mean we have moved on from the scourge that is COVID-19.  However, the COVID vaccine is finally here! Though distribution has been slow, employers are planning ahead and wondering if they can require employees to get a vaccine as a condition to returning to work.  The short answer is yes, but there are some important factors to take into consideration to avoid potential risks, such as compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other state and federal employment laws.

According to newly published EEOC guidance, employers, in general, can require employees to be vaccinated against COVID-19 and have determined that administration of a vaccine is not a medical examination under the ADA. “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” However, employers should be careful with any pre-vaccination questions as those could be subject to ADA laws. Employers need to make sure that these questions are job-related and consistent with business necessity.

Of course, there are always exceptions to the general rule.  Employees who have medical concerns related to a disability or sincerely held religious beliefs that preclude them from being vaccinated may be exempted from the vaccination requirement. In these scenarios, a reasonable accommodation that does not pose an undue hardship to the employer’s business may be required, such as allowing the employee to work from home, requiring the employee wear protective equipment at all times, or providing a separate space for the employee to work.

Where an accommodation is not possible or cannot substantially reduce the risk of infection to others, the employer must be able to demonstrate that the unvaccinated employee poses a “direct threat” to the safety and health of other individuals at the workplace. The following factors should be evaluated in determining if a direct threat at the workplace exists:

  • the duration of the risk
  • the nature and severity of the potential harm
  • the likelihood that the potential harm will occur
  • the imminence of the potential harm 

If there are no reasonable accommodations available and the employer finds that the employee does pose a direct threat to others, the employee may be prohibited from physically entering the workplace, but this does not mean the employer can terminate the worker without liability. Employers will need to determine if any other rights apply under other federal, state or local laws.

Finally, employers are not shielded from liability if an employee suffers adverse effects from a mandated vaccine administered by the employer or a third party with whom the employer has contracted. Therefore, the best option for employers is to encourage employees to take the vaccine voluntarily rather than mandating it. Employers can choose to give incentives to those employees that decide to get the vaccine to promote voluntary compliance.

Always best to contact legal counsel if you have any further questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

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PLANNING FOR YOUNG ADULTS AMIDST THE CORONAVIRUS

In older blog posts, I have stressed the importance of creating an estate plan that will best suit your individual and/or family needs.  With all of the craziness and uncertainty brought about by the Covid-19 pandemic, this importance has magnified that much more.  In an article written in the Miami Herald recently, Jose A. Iglesias stated “As the coronavirus crisis escalates, catastrophic projections of 100,000 to upwards of 240,000 deaths in the United States are forcing people to act on long-deferred intentions to get their affairs in order. No one is immune. Legal experts urge all mortals — not just the elderly and not just the wealthy — to put their end-of-life plans in writing.”

What we, as parents of young adults, often fail to think about is planning not for our children, but by our children. I, like many of my friends, am about to become an “empty nester”.  My older daughter is about to begin her senior year in college and my youngest is about to begin her freshman year.  As we scour websites to see what their dorms or apartments are going to look like, buy every school supply known to man and prepare for the inevitable parental tears from knowing that the kids are away and mom and dad are going to have to reintroduce ourselves to one another, we need to consider important legal documents that can protect our young adults and our ability to act as their guardian in emergency situations.

I can agree that, while important, a Last Will and Testament may not be a priority for my eighteen year-old and twenty-one year old daughters – however, I cannot stress the importance of them having other essential advance directive documents in place.  In no particular order, I recommend that anyone over the age of 18 have the following:

DESIGNATION OF HEALTH CARE SURROGATE WITH HIPAA AUTHORIZATION

A signed Designation of Health Care Surrogate communicates your wishes in case you are unable to make medical decisions or communicate this information due to a medical emergency or incapacity. This form will also contain a Health Insurance Portability and Accountability Act (HIPAA) authorization by your adult child naming you as a designated “surrogate” giving you the ability to ask for and receive information that would normally be protected from you from your child’s healthcare practitioners about their health status, progress, and treatment. Without a HIPAA authorization in place, the only other way to obtain information regarding your child’s health would be to have a court appoint you as his or her legal guardian.

LIVING WILL AND HEALTH CARE PROXY

A Living Will is a statement indicating you would not want to be kept alive by life-sustaining measures if in a coma or vegetative state with no hope of recovery.

DURABLE POWER OF ATTORNEY (POA)

A Durable Power of Attorney authorizes a trusted person (in the case of young adults, typically parents or legal guardians who are referred to as “attorney-in-fact”) to make important decisions or conduct matters on behalf of the young adult, even after they become incapacitated. With a Durable Power of Attorney, the attorney-in-fact named would be legally permitted to take care of important matters for your young adult, if they’re unable to do so themselves. The powers granted to the attorney-in-fact are broad and provide the ability to make medical, legal, and financial decisions on the young adult’s behalf.

The thought of needing these documents is not something that any parent wants to think about. Unfortunately, with the Coronavirus being such a changing force in our daily lives, there could not be a better time to consider and prepare for this scenario.

While we are on shelter at home Order, I will be offering a fifty percent student discount on my advance directive packages for young adults between the ages of 18-25 or alternatively, to be included at no charge to be as part of a full estate planning package for the parents of young adults.

Jason Steinman, Esq.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: JSteinman@assoulineberlowe.com 

http://www.assoulineberlowe.com

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