COVID-19 Force Majeure and Contracts

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).


Continue Reading UPDATE ON COVID CONSIDERATIONS: Long COVID Now an ADA Disability

In a one-line ruling on Monday, December 13, 2021, the U.S. Supreme Court dismissed the last of the legal challenges to the vaccine mandate for health care workers in New York. It also dismissed a challenge to a similar mandate for New York City Education Department employees, denied challenges to similar mandates for employees at Massachusetts General Hospital, and a challenge against a Maine mandate.

The New York plaintiffs, two groups of health care employees, sought an injunction against the mandate after the Second Circuit found it lawful. These Suits were brought in two courts, the Eastern and Northern Districts in New York, and ultimately were consolidated into one challenge. The argument was, by excluding religious exemptions, the New York mandate infringed on religious freedom. These New York plaintiffs claim that the vaccines offend certain religions, because they used fetal cell lines during testing. This theory has now been rejected by several courts.

This signals a trend by the high court, which is to honor mandates issued by individual state governments. This decision also clears the way for New York health care providers to confidently enforce the vaccine mandate, knowing that it has now been backed by the courts.


Continue Reading The Latest on Vaccines and Other COVID News

Where the Mandate Stands and Current Considerations for Contractors and Subcontractors

The federal contractor vaccine rollout continues to present thorny issues for federal contractors.  President Biden issued Executive Order (“E.O.”) 14042 in early September 2021, requiring federal contractor employees to get vaccinated against COVID-19.  The E.O. was followed by guidance issued by the Safer Federal Workforce Task Force (“Task Force”) in late September 2021, which has been frequently updated in the months since.

As described more fully in our prior post, under the mandate, implemented through the Task Force guidance incorporated into clauses issued by federal agencies, vaccines are mandatory for federal contractor employees working on covered contracts, those who perform duties in connection with a covered contract, and those working at the same workplace as covered employees. Contractors must also comply with masking and physical distancing requirements.  The mandate applies to subcontractors at any tier, and applies to contractors of all sizes — small, medium or large.  The E.O. and Task Force guidance immediately gave rise to many compliance questions and concerns over impact on contract or subcontract performance.  Legal challenges to the contractor vaccine requirement and actions by numerous states have further complicated an already difficult compliance landscape.


Continue Reading Uncertainty with the Federal Contractor Vaccine Mandate