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“Long COVID” looms ahead as leading ADA claim?

By Mike O’Brien

Legal commentators are already predicting that the condition now known as “long COVID” may displace back conditions as the leading impairment asserted in charges brought under the Americans With Disabilities Act (ADA). CNN recently reported, “A large study has revealed that one in three Covid-19 survivors have suffered symptoms three to six months after getting infected, with breathing problems, abdominal symptoms such as abdominal pain, change of bowel habit and diarrhea, fatigue, pain, anxiety, and depression among the most common issues reported.” To date, COVID-19 has infected some 43 million Americans. The United States Department of Health and Human Services (HHS) already has opined here that “long COVID can be a disability under” the ADA. The Equal Employment Opportunity Commission (EEOC) agrees, citing the HHS paper.

Guidance issued for federal contractor vaccine mandate

On Sept. 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued the highly anticipated COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. The Safer Federal Workforce Task Force is led by the White House COVID-19 Response Team, the General Services Administration (GSA), and the Office of Personnel Management (OPM). Task Force members include the Centers for Disease Control and Prevention (CDC), the Department of Veterans Affairs (VA), the Federal Emergency Management Agency (FEMA), the Federal Protective Service (FPS), the Office of Management and Budget (OMB), and the United States Secret Service (USSS). The new Task Force Guidance implements the requirements of Executive Order No. 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (“Guidance”), issued by President Biden on Sept. 9, 2021. Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols: (1) COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation; (2) Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and (3) Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces. The Guidance requires that covered contractor employees subject to the Order must be fully vaccinated against COVID-19 on or before Dec. 8, 2021. These requirements are to be included in Federal procurement solicitations and contracts issued on or after Oct. 15, 2021. The mandate also must be included upon the exercise of an option period, or through bilateral contract modifications for ongoing contracts. These requirements also flow down to all lower-tier subcontractors. If you have federal contracts, you should verify you are covered by this mandate and start the compliance process.

Increasing fallout for no-vax workers

The national Society for Human Resource Management (SHRM) recently published an article reporting that “Firing Unvaccinated Workers Becomes More Common.” The Sept. 29, 2021 article noted several cases where large employers, including United Airlines, have started to fire employees who refuse to get vaccinated. A number of courts also have upheld such employer vaccination mandates in the face of employee legal challenges. Of course, an employer that requires vaccines also must provide reasonable accommodations if requested by persons who cannot receive the vaccine due to reasons of disability, religion, or pregnancy.









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