The Employer’s Covid Mandate Conundrum
What to do about workplace vaccine policies
Posted on 12-29-2021, Read Time: Min
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The Covid-19 pandemic created a series of unprecedented challenges for HR professionals. From the need to rapidly adjust to remote work to the unique challenges of maintaining a safe worksite, it has been a challenging time, to say the least. Throughout 2021, that challenge was compounded by the questions of what, if any, requirements should be put in place relative to vaccination against Covid-19.
The first round of questions focused on whether an employer can require its employees to get vaccinated. The answer to this question was, “It’s complicated.”
Generally, an employer may require its employees to be vaccinated. However, if an employee could show that doing so would put them at risk medically or they had a sincerely held religious belief that kept them from being vaccinated, the employer needed to offer a reasonable accommodation.
The next round of questions in this regard was primarily focused on whether an employer could penalize employees, who didn’t get vaccinated by charging them higher health plan premiums (example - Delta Airlines).
The answer to this question was, “It’s complicated.” The more detailed response was that while this is theoretically possible, any incentives or penalties tied to vaccination status under an employer-sponsored plan had to comply with Health Insurance Portability and Accountability Act's (HIPAA) wellness plan rules. Additionally, only the “non-vaccinated” rates could be considered for purposes of the affordability calculations under the employer mandate. Combined, these rules discouraged employers from tying vaccines to their health plans.
Then came the questions about whether an employer MUST require its employees to get vaccinated.
And, you guessed it, the answer to this question is still, “It’s complicated.” The federal government has issued three distinct vaccination mandates (all of which are subject to the medical and religious accommodation rules):
- Large Employers. This rule requires all employers with greater than 100 employees to ensure all employees are vaccinated or tested weekly for Covid-19, if they report to work in person. The rule also requires unvaccinated employees to wear face masks indoors.
- Health Care Facilities. This rule requires all healthcare facilities that participate in the Medicare and Medicaid programs to ensure their employees are vaccinated.
- Federal Government Contractors. This rule requires that all covered contractor employees working on covered government contracts and anyone they come into contact with through their employment be vaccinated.
As of this writing, all three of these rules were stopped by Federal courts pending a determination as to whether the Biden Administration actually has the power to create these rules. Thus, the fate of these rules remains in limbo.
(Update: 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 situation is further complicated in states like Florida and Texas, where state law prohibits employers from mandating vaccination—unless, of course, that state law is preempted by federal law to the contrary. (Update: 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.)
Unfortunately, “It’s complicated” isn’t a good answer to give your CEO when they ask you what your company needs to do to stay ahead of these vaccination issues. Instead, we suggest the following in determining the appropriate next steps for your company:
- Understand Senior Leadership’s Position on Vaccination. Most business leaders have been thinking about Covid-19, vaccinations and workplace safety a lot lately. They are likely to have a position on these topics and a “preferred approach.” This approach will likely reflect your company’s culture—and will undoubtedly take into account business realities. By understanding the business’s core objectives, you can chart the best path forward for your team.
- Determine How That Objective Can Be Met. Suppose your leadership wishes to impose a vaccination mandate. In that case, you already know what to do and likely have since implemented a mandatory vaccination program that considers the reasonable accommodation rules. If your leadership doesn’t want a mandate, determine which, if any, vaccination mandate rule may apply to your company in the future.
- Be Prepared. Assuming your leadership doesn’t want to implement a mandate and that you may become subject to such a mandate, have an action plan in place if the courts eventually allow the mandate to go into effect. (Update: 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 rules surrounding vaccination are moving—fast— and the answer to most questions surrounding them is, unfortunately, “It’s complicated.” However, the complexity is mitigated for employers that start with the end in mind. Of course, this doesn’t make it easy. It does however allow for a course forward to be charted.
Author Bio
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Jennifer Spiegel Berman, JD, MBA, is Senior Vice President, Compliance, and ERISA Counsel at Kelly Benefits. Jennifer is a leading Employee Benefits attorney and compliance consultant whose insight and experience have helped dozens of employers, large and small, navigate the complex and ever-changing world of wellness plan rules and statutes. In addition to her role at Kelly Benefits, she is CEO and Co-Founder of MZQ Consulting. Visit www.kellybenefits.com Connect Jennifer Spiegel Berman |
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