Jason A. Levine, Ryan Martin-Patterson, & Stephen Tagert
The top COVID-19 litigation developments since our last post include: new EEOC guidance on religious exemptions to workplace vaccination requirements; OSHA citations against an employer for alleged workplace safety and reporting violations after an employee’s death from COVID-19; Second Circuit’s affirmance of a trial court’s refusal to enjoin New York City’s vaccination mandate for teachers; and a new lawsuit asserting that the Fair Debt Collection Practices Act (“FDCPA”) prohibits collection of student loan debts that were temporarily suspended by the CARES Act.
1. EEOC Releases New Guidance Regarding Vaccination Religious Exemptions
Overview: The EEOC added a new section to its Guidance—titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”—that discusses anti-discrimination laws as applied to faith-based exemptions to vaccinations.
Guidance: The Guidance says that employers are permitted to require all employees to be fully vaccinated, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. The Guidance also encourages employers to continue to provide the most up-to-date information to employees about COVID-19 vaccines, and says that employers are permitted to ask employees for documentation of their vaccination status.
Regarding religious objections, the Guidance says that employees must tell employers if they are requesting an exemption from a COVID-19 vaccination requirement due to a conflict with their sincerely held religious beliefs, practices, or observances (i.e. a “religious accommodation”). “Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.” At the same time, if the employer has an objective basis for questioning either the religious nature or the sincerity of the particular belief, the employer may make “a limited factual inquiry” seeking additional information on the basis of the belief. The Guidance specifies that economic, political, and social views and personal preferences are not protected by Title VII. But the Guidance warns that nontraditional, unfamiliar religious beliefs are protected. The Guidance further highlights employers’ ability to argue that providing a reasonable accommodation for employees’ religious beliefs would be an “undue hardship” to the employer, and states that the obligation to provide religious accommodations absent undue hardship is a continuing obligation, taking into account changing circumstances (which sometimes may warrant discontinuation of a previously granted accommodation).
Our Take: Objections to COVID-19 vaccination have multiplied as employers debate when to require employees to return to the workplace. The EEOC Guidance provides a framework that employers should consider when making decisions about religious exemptions (including sensitive decisions about whether and how to seek information from employees concerning their religious beliefs), but employers should continue to pay attention to updated guidance and court decisions to ensure that they comply with the law in this changing landscape.
2. OSHA Cites Insurance Agency for Alleged COVID-19 Workplace and Reporting Violations
Overview: On October 1, 2021, OSHA issued a citation to an auto insurance company for allegedly allowing an employee with symptoms of COVID-19 to work in close contact with other employees and failing to timely report the death of the employee from COVID-19.
The Citation:According to the citation and an accompanying press release, OSHA began investigating the company after receiving a complaint of unsafe working conditions. OSHA’s investigation found that the company did not adhere to COVID-19 related safety requirements, allowing employees to work in close contact with an employee who contracted, and later died from, COVID-19. OSHA fined the company $13,653 for this safety violation. OSHA also cited the company for not timely reporting the employee’s death due to the workplace-related incident. Specifically, OSHA concluded that 29 C.F.R. § 1904.39(a)(1) required the company to report the death within 8 hours of learning that the employee passed away. The fine for this second reporting violation was $9,753. OSHA appears to have taken the position that the employee’s death was a “work-related incident” because the employee allegedly contracted COVID-19 in the workplace.
Our Take: With OSHA seeming to take a more aggressive stance on reporting injuries and deaths due to COVID-19 transmission in the workplace, companies should be careful to ensure they follow OSHA regulations and guidance to mitigate potential enforcement risk. In particular, companies should consider whether to adjust work arrangements that may give rise to allegations that employees are being required to work in close proximity with others who are experiencing symptoms, and should also consider potential OSHA reporting requirements if employees should unfortunately die from COVID-19.
3. Second Circuit Upholds New York City Teacher Vaccination Mandate
Overview:On October 15, 2021, the Second Circuit upheld an order from the U.S. District Court for theEastern District of New York, declining to enjoin New York City’s vaccination mandate for employees of the city’s Department of Education (“DOE”).
The Decisions: In August 2021, the Commissioner of the New York City Department of Health and Mental Hygiene issued an order (the “Mandate”) requiring that all DOE staff, employees, and contractors submit proof of full COVID-19 vaccination by September 27, 2021. The Mandate does not permit testing in lieu of vaccination, unlike similar orders that apply to other New York City departments. Plaintiffs, who are teachers and other employees of DOE, sued to enjoin the Mandate, claiming it violated the due process and equal protection clauses of the Fourteenth Amendment and was promulgated in violation of New York administrative law.
The court denied Plaintiffs’ motion for a preliminary injunction. It held that Plaintiffs were unlikely to succeed on the merits because they had no due process or property rights in the specific jobs put in jeopardy by non-compliance with the Mandate. The court also held that Plaintiffs’ equal protection rights were not violated by differences between the Mandate and other New York City orders that allowed daily testing in lieu of full vaccination. Finally, the court noted that Plaintiffs’ administrative law claims were being litigated in another forum, and it declined to enjoin the Mandate based on those claims. On appeal, the Second Circuit adopted the EDNY’s reasoning as its own and affirmed.
Our Take: New York has been the site of intense litigation regarding various local, state, and federal vaccination mandates. So far, courts have largely upheld the mandates, declining to overturn them on constitutional grounds. Companies that contract with government entities should continue to pay close attention to government-issued vaccination mandates, as courts generally appear reluctant to intervene to overturn them.
4. Texas Plaintiff Sues for Alleged Debt Collection Violations Based on the CARES Act
Overview: A plaintiff filed a proposed class action against Automated Collection Service, Inc. (“ACSI”) under the FDCPA after allegedly receiving a dunning letter in June 2021 attempting to collect a student loan debt.
The Complaint:Irene Berns sued ACSI in the U.S. District Court for the Western District of Texas, claiming that in June 2021 ACSI improperly attempted to collect a debt that she had incurred for student loans. The Complaint alleges that the CARES Act provides temporary relief for federal student loan borrowers, a relief that has been renewed continuously since the onset of the pandemic and will be in effect until at least January 31, 2022. Because of the CARES Act’s temporary relief, Plaintiff asserts that since March 2020 it has been unlawful for debt collectors to attempt to collect a covered debt, and thus the dunning letter violated the FDCPA and the Texas Debt Collection Act.
Our Take: The Complaint’s theory appears to be that trying to collect debt in an otherwise lawful fashion becomes unlawful if Congress provides a means for temporary relief from paying that debt. We will pay attention to whether the court agrees with this theory and whether other plaintiffs bring similar claims.