Covid-19 Vaccine Mandate: The Changing Legal Landscape

To mandate, or not to mandate

While many employers are preparing for their workforce to return to the workplace in early 2022, the legal landscape of federal Covid-19 vaccine mandates remains a question mark. Generally speaking, enforcement of federal vaccine mandates governing employers with 100 or more employees, federal contractors, and federal healthcare workers is on hold, pending the outcome of various legal challenges.

(Update: This article was written before the U.S. 6th Circuit Court of Appeals, on Dec. 17,  lifted the legal block on the OSHA vaccine mandate, opening the way for the mandate to be enforced in early 2022. The federal mandate is slated to start on January 10, 2022. OSHA won’t issue any citations to employers who don’t comply with the mandate before then, and won’t issue citations for non-compliance with the testing requirement before February 9, 2022.)

The mounting uncertainties regarding the enforceability of the federal vaccine mandates have caused some employers to tap the brakes on rolling out a mandate of their own. But the pending legal challenges to the federal mandates have no bearing on whether a private employer may mandate vaccination of its own workforce (subject to certain legal requirements). In fact, given the possibility a federal mandate will go into effect in some shape or form, there are advantages to employers preparing now.

Based on guidance issued to date, in general, private employers may:
 

 

Private employers may mandate their employees be vaccinated against Covid-19, so long as:
 

Before implementing a vaccine mandate, develop a clear framework for employees to follow. Provide employees with as much notice as possible. Share the reasons why the company has opted to require vaccination. Distribute information and other resources about vaccination. Prepare a list of available vaccination sites. Designate an individual or team as the go-to for employee questions. Outline the process for accommodation requests. Determine whether to add booster shots to the definition of “fully vaccinated” under the mandate.

Clear, consistent, and comprehensive messaging may mean the difference between a confused and dissenting workforce and an informed and collaborative workforce.

In addition, employers should consider the types of accommodations they may be able and willing to provide prior to rolling out a vaccine mandate. In general, requests for reasonable accommodation will need to be considered on a case-by-case basis. Even so, employers that develop a strategy for responding to accommodation requests at the outset will be better prepared and better positioned to navigate requests when the time comes.

Note that state law may require an employer to pay for their employee’s time spent obtaining a Covid-19 vaccine, if the vaccine is required by the employer in order to perform the work. For example, Oregon employers are required to pay for time spent by an employee waiting for, or receiving, medical attention on their premises or at the direction of the employer during the employee’s normal working hours on days when the employee is working. The Oregon Bureau of Labor and Industries takes the position that time spent obtaining a Covid-19 vaccine, when the immunization is required by the employer, would fall within this rule.

In addition, or as an alternative, to requiring vaccination of their workforce, employers may lawfully impose a health plan surcharge on unvaccinated employees, or a health plan discount for vaccinated employees.

Subject to certain limitations, federal law generally grants employers the flexibility to design their group health plan eligibility, coverage terms, and premium costs. However, any discount or surcharge program must comply with the Health Insurance Portability and Accountability Act’s (HIPAA) guidelines for activity-based wellness programs.

Although employers may legally impose a health plan discount or surcharge, the approach is novel in the context of Covid-19. In mid-2021, Delta Airlines announced its decision to charge a $200 monthly surcharge to employees, who were not fully vaccinated by November 1, 2021. So far, no legal challenge has been reported as being filed against Delta Airlines’ health plan surcharge.

Note that employers with unionized workforces may not be able to impose health plan discounts or surcharges without bargaining with the union, depending on the language of any applicable collective bargaining agreements.

Employers may also opt to provide a financial incentive to employees, who receive their Covid-19 vaccine(s). However, employers should consider whether a financial incentive violates pay equity laws.

In Oregon, the Legislature passed HB 2818 in response to this very concern. HB 2818 expressly permits employers to offer vaccine incentives without running afoul of Oregon’s Pay Equity law. However, employers should still be mindful of whether a vaccine incentive could have a disparate impact on employees, who are unable to obtain a Covid-19 vaccination due to a legally-protected reason.

A financial incentive that is unlikely to trigger pay equity concerns or run afoul of the Americans with Disabilities Act is to offer a bonus to all employees once a certain percentage of employees either are fully vaccinated or indicate that they are exempt due to a legally-protected reason.

Employers considering implementing any of these strategies to combat Covid-19 within their workplace should familiarize themselves with applicable state and federal mandates and stay apprised of legal challenges to federal, state, and private mandates, as well as their outcomes. Courts’ approaches to these mandates will continue to inform best practices for the ongoing development and enforcement of vaccination mandates and incentives.

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