Covid Vaccine Mandates: Key Steps To Consider
Key steps to consider
Posted on 12-28-2021, Read Time: Min
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The federal government has enacted several Covid-19 vaccine mandates that impact various businesses; namely there is a Health Worker Mandate, a Federal Contractor Mandate, and Employers of 100 or More Workers Mandate. Below is a rundown of these mandates as of December 18, 2021; they are all still working their way through the court system and this information is subject to change.
Employers of 100 or More Workers Mandate
The Occupational Safety and Health Administration (OSHA) issued a vaccination and testing Emergency Temporary Standard (ETS), which applies to all businesses that employ 100 or more workers. Originally, the ETS was to be implemented by businesses beginning on December 6th, but legal challenges halted implementation.
On December 17, 2021, the 6th U.S. Circuit Court of Appeals lifted the stay on the rule, making it currently effective. The ruling was quickly appealed on an emergency basis to the U.S. Supreme Court.
OSHA has released additional guidance with respect to enforcement of the ETS and extended the timeframe for business to implement the ETS. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. This will give employers more time to comply with the ETS.
Any employees who are entitled to reasonable accommodation due to disability or a sincerely held religious belief that prevents them from being vaccinated would need to comply with the ETS weekly testing requirements.
On December 17, 2021, the 6th U.S. Circuit Court of Appeals lifted the stay on the rule, making it currently effective. The ruling was quickly appealed on an emergency basis to the U.S. Supreme Court.
OSHA has released additional guidance with respect to enforcement of the ETS and extended the timeframe for business to implement the ETS. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. This will give employers more time to comply with the ETS.
Any employees who are entitled to reasonable accommodation due to disability or a sincerely held religious belief that prevents them from being vaccinated would need to comply with the ETS weekly testing requirements.
Health Worker Mandate
Under a rule published by the Centers for Medicare & Medicaid on November 5, 2021, a wide range of health providers that receive federal Medicare or Medicaid funding were to require workers to receive the first dose of a Covid-19 vaccine by December 6, 2021, and be fully vaccinated by January 4, 2022. The rule would affect more than 17 million workers in about 76,000 health care facilities and home health care providers.
Similar to the rule for businesses with 100 or more employees, this was challenged and has been working its way through the legal system. Currently, the rule is on hold nationally, but a ruling on December 15, 2021, gives it the possibility of moving ahead in about half the states.
The court rulings blocking the implementation are being appealed by the current administration, which has asked the Supreme Court to block the lower court orders that are keeping the mandate from going into effect.
Similar to the rule for businesses with 100 or more employees, this was challenged and has been working its way through the legal system. Currently, the rule is on hold nationally, but a ruling on December 15, 2021, gives it the possibility of moving ahead in about half the states.
The court rulings blocking the implementation are being appealed by the current administration, which has asked the Supreme Court to block the lower court orders that are keeping the mandate from going into effect.
Federal Contractor Mandate
Under an executive order issued on September 9, 2021, contractors and subcontractors for the federal government are required to comply with workplace safety guidelines developed by a federal task force. The guidelines required that employees, who were receiving a two-dose vaccine needed to have received their second shot no later than January 4, 2022.
Like the above rule, this one too has faced numerous challenges and is making its way through the courts. It’s currently on hold from a ruling issued on December 7, 2021. Legal challenges and appeals will continue.
Like the above rule, this one too has faced numerous challenges and is making its way through the courts. It’s currently on hold from a ruling issued on December 7, 2021. Legal challenges and appeals will continue.
Individual Company Covid Vaccine Mandates
Not all businesses fall under the government Covid-19 vaccination mandates, and there have been a lot of questions from those business owners about requiring employees to get the Covid-19 vaccination, and if they haven’t can they still, at their discretion, require employees to get the vaccine. It’s fair to say that Covid compliance is still an issue that is top of mind for many businesses, especially in light of additional variants popping up.
Simply put, yes, employers can require the Covid-19 vaccination for their employees, but must provide reasonable accommodations and exemptions for those that qualify.
Employers aren’t making the decision to require employees to get the vaccine lightly. There are numerous considerations in play. Requiring could lead to enforcement issues, for example, what if the top salesperson declines to get the vaccine and doesn’t qualify for an exemption; if you’re a small business faced with that situation do you now let your best revenue generator go? There is also the concern of requiring the vaccine and an employee, who has a serious and life-threatening reaction; that could potentially lead to a lawsuit.
Simply put, yes, employers can require the Covid-19 vaccination for their employees, but must provide reasonable accommodations and exemptions for those that qualify.
Employers aren’t making the decision to require employees to get the vaccine lightly. There are numerous considerations in play. Requiring could lead to enforcement issues, for example, what if the top salesperson declines to get the vaccine and doesn’t qualify for an exemption; if you’re a small business faced with that situation do you now let your best revenue generator go? There is also the concern of requiring the vaccine and an employee, who has a serious and life-threatening reaction; that could potentially lead to a lawsuit.
Vaccination Policies and the ADA
A mandatory workplace vaccination program must comply with the Americans with Disabilities Act (ADA). The important thing to keep in mind here is that under the ADA, employers are generally required to provide reasonable accommodations to employees who due to a disability (which includes pregnancy) do not get vaccinated. Keep in mind that reasonable accommodations are also required for employees, who refuse to be vaccinated due to a sincerely held religious belief.
Unless a business can show that providing the accommodation would pose an undue hardship, significant difficulty or expenses on the employer, the accommodation requests will have to be granted. Any employee vaccination policy will need to consider the implications of the ADA and how accommodations will be handled.
How should accommodation and Covid-19 vaccination exemptions be handled? That depends on whether the accommodation is for a disability or for a sincerely held religious belief. Here are some steps to consider that will help handle accommodation requests for businesses that implement a mandatory vaccination policy:
Unless a business can show that providing the accommodation would pose an undue hardship, significant difficulty or expenses on the employer, the accommodation requests will have to be granted. Any employee vaccination policy will need to consider the implications of the ADA and how accommodations will be handled.
How should accommodation and Covid-19 vaccination exemptions be handled? That depends on whether the accommodation is for a disability or for a sincerely held religious belief. Here are some steps to consider that will help handle accommodation requests for businesses that implement a mandatory vaccination policy:
- Make sure you have a policy in place for handling accommodation requests. Implement policies and procedures for employees to follow if they are requesting medical or religious accommodation.
- Review all requests for exemption from the vaccine requirement. Each request for vaccination exemption should be reviewed to determine whether or not the request qualifies under the disability accommodation or sincerely held religious belief accommodation. Personal preference against getting the vaccine isn’t likely to be enough to qualify for exemption, and if a vaccine policy is in place companies will have to hold firm on the consequences in those situations or face the potential issues that come with not doing so. There is no particular language an employee needs to use in order to request an accommodation.
- Start the interactive process. Accommodations are an interactive process and once a company has received one, the next step is to engage with the employee, the health care provider, or religious leader and gather more information on the disability, or the religious beliefs. Employers need to put forth a good faith effort to make this process interactive and involve the employee.
The request should be reviewed and good practice is to put it in writing. For disability accommodations, employers should probably be looking for some documentation from the health care provider regarding the nature of the disability and the duration of the disability and the reasons why the disability conflicts with the vaccination requirement. Businesses will need a written release or permission from the employee to talk directly with the health care provider.
For religious accommodations, businesses should be looking for an explanation of the sincerely held beliefs and where appropriate, documentation from the religious leader as to why there is a conflict with the vaccination requirement.
- Determine whether or not there is a disability or sincerely held religious belief. For disabilities, the resource to use is the ADA; for religious beliefs, the resource to use is Title VII of the Civil Rights Act.
- Determine if an accommodation poses an undue hardship or direct threat. Accommodations don’t have to be granted if they would result in an undue hardship on the business or pose a direct threat to the health and safety of others. Businesses will need to evaluate their individual situations under the lens of undue hardship and direct threat and determine whether or not to grant the accommodation.
- Notify the employee of the decision. The final step in the accommodation process would be to notify the employee of the decision, and if the accommodation is denied, employers should communicate and document any alternative accommodations that may be available. Make sure to keep documentation of the entire process, and to keep all of that information confidential.
- Review the process. Accommodation processes aren’t set in stone. If circumstances change, or needs change then revisit the process and tweak as needed.
Author Bio
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John Rabil is the Founder of Launch, where he works with small and medium-sized businesses focusing on counseling, advising and proactive legal and risk management. John has a broad range of experience, from working at large multinational companies, to starting his own company, which allows him to combine his real-life business and legal expertise to provide his clients with unique guidance and specialized advice. Connect John Rabil |
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