As nonprofit and trade associations begin to plan for the eventual return to in-person conferences, we take a look at how some of the discrimination and privacy laws apply to non-employee attendees of an in-person conference.
The trove of useful information on our COVID-19 Related Workplace Litigation Tracker includes some “public nuisance” cases involving alleged failures to implement preventive measures recommended by the CDC and OSHA.
These cases show that taking precautions based upon public health guidance is important, but they must also be balanced with legal obligations concerning confidentiality, privacy and providing reasonable accommodations.
In March 2020, the Equal Employment Opportunity Commission (EEOC) updated its Pandemic Preparedness Guidance. In December 2020, the EEOC 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 Title VII.
While this guidance was developed to assist employers, much of it is applicable to in-person conferences as well.
Importantly, this guidance makes clear that – as long as COVID-19 remains a global pandemic and as long as inquiries are made in a way that does not violate the confidentiality requirements of the ADA or GINA – it does 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)
Show proof of having received a COVID-19 vaccine (with some exceptions)
As in the employment setting, absent undue hardship, reasonable accommodations must be provided to conference attendees who make it known that they cannot receive a vaccine or wear a face mask, for example, due to a medical condition or because of a sincerely held religious belief.
There is no bright-line test that defines a reasonable accommodation under the ADA or Title VII (or similar state laws). Instead, the determination of what constitutes a reasonable accommodation must be based on the individual facts and circumstances of the 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.
It also is important to remember that if an association 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 keeping a log or 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 (including GDPR, if the information pertains to an EU citizen or resident).
As a practical matter, the best approach for in-person conferences for most associations, based on current guidance (as well as 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 by combining medical and non-medical questions on the same questionnaire
Establish a mechanism that allows an attendee to request an accommodation, either specifically for COVID-19 requirements or in general
When following up on questionnaires or requests for accommodations, be mindful of legal requirements under the ADA, GINA, Title VII, 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.
About this Author
Norma W. Zeitler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department and the Associations and Foundations Practice Group. She concentrates her practice on employment law, and represents employers in the defense of employment discrimination, retaliatory discharge, breach-of-contract, workplace tort, and restrictive covenant cases in federal and state courts and administrative agencies. She also provides day-to-day counseling for employers on all matters that impact the employment relationship.
You are responsible for reading, understanding and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558 Telephone (708) 357-3317 or toll free (877) 357-3317. If you would ike to contact us via email please click here.
Menu
