What we lawyers mean when we say “C-Y-A” is…

We love helping clients navigate the murky waters of COVID-related guidance and other important, everyday stuff that may be forgotten (because employers have more to think about than just COVID compliance). We’re here to cover your . . . you know . . .

This week, we’ve got updated (yes, again) vaccine guidance straight from the EEOC, some points for New Jersey employers dealing with accommodation requests, and a short piece on offer letters – a critical but often overlooked component of the onboarding process. Enjoy!

Employee Vaccination Guidance from the EEOC: Our Memorial Day Weekend was given a shot in the arm (puns!) as the Equal Employment Opportunity Commission (“EEOC”) released highly-anticipated guidance on vaccination status disclosure and incentives. Don’t worry – we read it so you don’t have to. Here are some key takeaways:

· Vaccination: In a stamp of approval on our previous guidance, the EEOC confirmed that employers can require all employees physically entering the workplace to be vaccinated, so long as you permit carveouts for accommodating individuals with a disability, sincerely held religious belief, or other protected reason. Remember – unless providing the accommodation would impose an undue hardship, you should really consider the accommodation request.

· Proof of vaccination and incentives: Employers are permitted to request documentation or other confirmation that an employee is vaccinated. Employers can also offer incentives to encourage employees to get vaccinated. If the employer or its agent is administering the vaccination then the incentive cannot be so substantial as to be coercive, but if the employee is receiving the vaccination on their own (from a local pharmacy, for example) then there appears to be no restriction on the incentive rule.

· Confidentiality: Remember, if you do request documentation or other confirmation that an employee is vaccinated, that information is confidential! That means you can’t disclose one person’s vaccination status to another concerned employee. If you gather this data, make sure you have proper guardrails in place to secure and maintain the confidential nature of those documents. Pro tip: keep this information separate from the employee’s personnel file, which may be accessible to various individuals.

Employers must take appropriate steps to ensure a safe and healthy workplace for employees. If you need assistance creating policies, gathering information, and maintaining compliance, we’re here to help!

Bonus! If you’re still reading (thank you), here’s some extra content for you: Check out Brian in Eater discussing vaccination disclosures in the hospitality industry and ways that employers can keep themselves out of trouble.

“We’d be happy to (try to) accommodate you”: Speaking of accommodations . . . we’ve got a timely update for New Jersey employers. Various federal and state laws require employers to respond to an employee’s request for a disability accommodation by engaging in an interactive process to see if a reasonable accommodation (one that will not impose an undue hardship) can be provided. This issue has received a lot of attention with requests to WFH, but there’s a lot more to it under a recent New Jersey ruling.

Garden State employers are now on the hook under the State’s Law Against Discrimination if they fail to engage in the interactive process, or otherwise make a reasonable accommodation when able to do so, even if the employee doesn’t suffer any adverse employment action as a result. What does this mean? Merely failing to engage in an interactive process (determining what accommodation the employee needs and if it can be granted without undue hardship) is a legal violation, even if the employee continues to work without consequence or otherwise is “unharmed”.

No, really, what does this mean? Simply put, when employees request an accommodation, employers need to respond appropriately. That doesn’t mean they have to grant the accommodation, but they must have conversations with the employee to determine what can be done. Simply ignoring the request, or shutting it down without exploring options, is a big no-no. Probably not a bad idea to loop your employment attorney into that conversation to make sure you’re toeing the line and your written policies are crystal clear (and followed, of course).

Make em’ an offer they can’t refuse: Offer letters are often rushed, haphazardly thrown together, or altogether ignored. But when someone is hired, the offer letter should be the first formal step in the onboarding process.

· When is the employee paid?

· Are they entitled to overtime?

· What benefits are available?

· Are they “at-will” or being hired for a specific period of time?

· Who do they report to?

· Under what circumstances can they be terminated?

These are all things an offer letter would ideally address, so that the “key” terms of employment are clearly laid out and agreed upon. What not to include? Standard policies that are better suited for your handbook – i.e., vacation and leave policies, details of benefit plans (insurance, 401Ks, etc.), and similar company-wide types of policies (unless the employee is being offered benefits that exceed the standard company-wide types of policies). Don’t rush this process – make sure you’re starting the onboarding process on the right note.

That’s it for this week!

Damien + Brian


Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.

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