Rewind to January 2020. We did not wear masks; we did not answer questions about where we had traveled in the last 14 days; we did not tell complete strangers whether we had experienced a fever, chills, a cough, shortness of breath, or other symptoms in the last 2 to 14 days; and we certainly did not have our temperatures taken to enter restaurants, stores, movie theaters, or the workplace.
But that was before the first case of Covid-19 was confirmed in the United States on January 21, 2020. In the months that followed, our entire way of life changed. The World Health Organization declared Covid-19 a global pandemic on March 11, 2020. Public health authorities in the U.S. ordered most of us to stay-at-home. As a result, we began working remotely; we closed our restaurants, bars, and convention centers; and we cancelled events across the country.
Fast-forward to today. With the development of Covid-19 vaccines, we are now planning for the new normal when we are once again permitted to gather in public. For many organizations, this means planning a return to in-person conferences.
As this planning process gets underway, it is important to understand the legal landscape so as to not run afoul of federal, state, or local discrimination or privacy laws.
In March 2020, the Equal Employment Opportunity Commission (EEOC) updated its Pandemic Preparedness Guidance, and in December 2020, issued guidance on what employers should know about Covid-19 and the laws the EEOC enforces, such as the Americans With Disabilities Act (ADA), the Genetic Information Nondiscriminaton Act (GINA), and the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex and national origin. While this guidance was developed to assist employers, much of it is applicable to in-person conferences as well.
Importantly, EEOC guidance makes clear that as long as Covid-19 remains a global pandemic and as long as inquiries are made in way that does not violate confidentiality requirements of the ADA or GINA, meeting hosts will not violate the ADA or GINA to require in-person conference attendees to:
• Answer questions about Covid-19 symptoms;
• Have their temperature taken;
• Show proof of a negative Covid-19 test;
• Wear personal protective equipment, such as a face mask (with some exceptions); and
• Show proof of having received a Covid-19 vaccine (with some exceptions).
The exceptions would include, for example, conference attendees who make it known that they cannot receive a vaccine or wear a face mask because of a sincerely held religious belief or due to a medical condition. Absent undue hardship, reasonable accommodations must be provided for those attendees.
There is no bright-line test that defines a reasonable accommodation under the ADA or the Civil Rights Act of 1964. Instead, that determination must be based on the circumstances of a particular situation—which, quite frankly, raises a whole host of legal issues and is not very practical in the context of in-person conference attendance.
To avoid some of the legal pitfalls associated with requiring conference attendees to be vaccinated for Covid-19, associations should consider whether it is sufficient to simply encourage attendees to be vaccinated. Alternatively, an organization might consider granting exemptions to the vaccine requirement to any attendee who indicates that they are unable, or potentially unwilling, to get the Covid-19 vaccine. If neither of the above options are acceptable, then associations should consider what other accommodations might be reasonable, such as allowing for virtual participation.
Regardless of the approach taken, it is important to remember that if an organization asks questions in a way that requires the disclosure of medical information, that information will be protected by the confidentiality provisions of the ADA, GINA, applicable state and local laws, and perhaps even privacy laws (including GDPR, if the information pertains to an EU citizen or resident). Consequently, it is important to design the questions in a way that does not violate these provisions.
Similarly, if an association collects or stores medical information, such as a list of attendees and their temperatures, Covid-19 test results, or Covid-19 vaccination status, it must comply with the confidentiality requirements of the ADA and GINA, as well as any applicable privacy laws.
As a practical matter, the best approach for in-person conferences for most organizations, based on current guidance and current availability of the Covid-19 vaccine, is to:
• Follow the guidance from the CDC as well as state and local public health authorities;
• Encourage, rather than require, attendees to get the Covid-19 vaccine;
• Avoid asking questions that elicit medical information. Do so by combining medical and non-medical questions on the same questionnaire, not requiring an answer to each question but instead asking if the attendee can answer "yes" to any of the above questions, and in such cases conducting follow-up screening in compliance with applicable confidentiality and privacy requirements;
• Establish a mechanism that allows an attendee to request an accommodation, either specifically for Covid-19 requirements or for accommodations in general;
• When following up on questionnaires or requests for accommodation, be mindful of legal requirements under the ADA, GINA, and the Civil Rights Act of 1964, as well as privacy laws.
Planning for the new normal is challenging because there remains a plethora of unknowns, and the guidance will undoubtedly change as 2021 unfolds. As associations begin to plan for in-person conferences, it will be critical to not only keep up with this guidance but also to seek advice from legal professionals who are well-equipped to help associations balance their desire to keep attendees safe with the host of legal pitfalls associated with doing so.
Norma Zeitler (far left) and Barbara Dunn are partners at Chicago-based law firm Barnes & Thornburg LLP. This article was originally prepared as a client alert on preparing for a return to in-person meetings.