COVID-19 Vaccine Mandate News and FAQ

COVID-19 Vaccine Mandate News and FAQ

The President’s COVID-19 Action Plan

On September 9, 2021, President Biden released his COVID-19 Action Plan requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. According to the president, “The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.”

The ETS will also require employers with more than 100 employees to provide paid time off for workers to get vaccinated or recover from vaccination.

We are actively monitoring for the details of President Biden’s COVID action plan. Here is what we know and don’t know:

What We Know

  • The mandate applies to employers with 100+ employees.
  • It requires mandatory vaccination or weekly testing to come into work.
  • It also requires paid time off to get vaccinated and recover.
  • Fines will be assessed.
  • If you have fewer than 100 employees, no federal contracts, and no healthcare workers, these new federal requirements do NOT apply to you.

What We Don’t Know

  1. How do employers count to 100?
  2. Do remote employees have to get vaccinated or tested?
  3. What kind of proof do employers need to require?
  4. Do employers need to do “due diligence”?
  5. Will testing be done at home or at work?
  6. Who pays for testing?
  7. Will there be any funds or tax credits available?
  8. What are the recordkeeping requirements?
  9. Can employees claim religious exemptions from testing?
  10. How will fines be assessed?
  11. Will OSHA have the staff to enforce this?

FAQ

How should employers address pushback from their employees (or others) about having to follow the vaccine mandate?
  • Put someone in charge of the whole process and make sure that complaints go to them. Don’t count on your frontline managers to know how to deal with escalations. They aren’t trained for that, and it’s not fair to them.
  • Emphasize that this is a federal government requirement and that you have no choice about whether or not to comply. You can also emphasize that penalties may be very steep – so steep that even one or two violations could put the business in jeopardy.
  • Focus on the fact that this is about safety. If employees don’t want a vaccination, there is a simple alternative, but in order to ensure that the workplace is safe with highly infectious Delta making the rounds, vaccination or testing must be done.
How do I accommodate an employee if all of my clients require employees are vaccinated?

We recommend speaking with your clients about possible accommodations for those employees who request an accommodation for a disability or sincerely held religious belief. Federal law generally requires employers to provide accommodations for employees for these reasons unless doing so would cause an undue hardship. There isn’t an exception for client requirements, which puts you between a rock and a hard place.

 

The first step is asking your client about potential exceptions to their mandatory vaccination requirement. If your client says that they will not grant any exceptions, we recommend placing employees who require a religious or disability accommodation with a different client. If all your clients require employees to be vaccinated without exceptions, possible accommodations might be to reassign the employee to a vacant position that they‘re qualified for or to place the employee on a leave of absence. Either way, you should discuss the available options with the employee.

 

If the only option is leave, you’ll want to discuss the length of leave with the employee (it might be temporary, as with pregnancy). The estimated duration will help you evaluate whether granting leave would cause an undue hardship.

How is the Delta variant different than regular COVID?
  • The Delta variant is twice as contagious as original COVID.
  • Fewer people have a cough or loss of smell, more people have headaches, sort throats, and runny noses (looks more like the common cold).
  • It appears that Delta may cause more severe illness in unvaccinated people than the original.
  • Delta appears more likely to cause breakthrough infections for the fully vaccinated, but the vaccines remain highly effective against severe illness, hospitalization, and death from Delta.
  • When a vaccinated person catches Delta, their viral load is as high as an unvaccinated person for a time (unlike earlier strains of COVID), but it goes down faster than for the unvaccinated, so they will be infectious for shorter periods of time.
What should I do if an employee says they can’t get vaccinated due to a religious belief or disability?

Assuming no state law or collective bargaining agreement prohibits it, employers can generally require employees to get the COVID-19 vaccine as a condition of continued employment, although they may need to make exceptions for employees who can’t get vaccinated because of a sincerely held religious belief, disability, or possibly pregnancy.

 

Religious Belief

Title VII of the Civil Rights Act of 1964 requires employers that have 15 or more employees to accommodate employees’ religious beliefs that are sincerely held if it doesn’t create an undue hardship. Title VII defines religion very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people or possibly just one person.

 

Here’s the basic framework. If the answer is no to any question, generally no accommodation is required; if the answer is yes to all questions, an accommodation is required.

  • Does the person have a belief that is religious?
  • Is the belief sincerely held?
  • Can an accommodation be made that would enable the employee to do the job, without creating an undue hardship?

 

According to the Equal Employment Opportunity Commission (EEOC), employers should generally assume that the employee’s religious belief is sincerely held, but if “they have an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

 

Under Title VII, undue hardship is defined as “more than a de minimis cost.” The EEOC explains this further in its guidance here.

 

Disability
The Americans with Disabilities Act (ADA) generally requires employers to provide accommodations to employees who have disabilities to enable them to perform the essential functions of their job, provided the accommodation doesn’t create an undue hardship. The definition of disability under the ADA is pretty broad and includes both physical and mental disabilities.

 

If an employee requests an exception to your mandatory vaccination policy because of a disability, then you would be required to engage in the interactive process. The interactive process is essentially an ongoing conversation with the employee to explore potential accommodations. You can require the employee to provide documentation from their health care provider confirming that the employee’s health condition prevents them from getting vaccinated and, if temporary, an estimate of the expected duration of the need for the accommodation.

 

The company would then determine whether it’s possible to make an accommodation that would enable them to perform their essential functions without creating an undue hardship.

 

Safety Assessment
Companies who are considering excluding unvaccinated employees from the workplace will ultimately need to assess whether allowing an employee to be unvaccinated, while engaging in other safety measures, would pose a direct threat in the workplace.

 

We recommend reviewing the EEOC’s guidance on what qualifies as a direct threat before making this determination. If you conclude that allowing an employee to remain unvaccinated rises to the level of a direct threat, then you are required to evaluate whether potential accommodations would eliminate that threat or reduce it enough so that it no longer meets the standard of being a direct threat. If no accommodations exist that would reduce the threat sufficiently (without creating an undue hardship), then you wouldn’t be required to make an exception for the employee.

 

If you believe there is no accommodation that will make it safe enough for that employee to be in the workplace, and they are not able to work from home, we recommend working with an attorney to assess the risk of termination or exclusion from the workplace.

 

Documentation
Employers should keep documentation as to how their determination to grant or deny a request for an exception to their mandatory vaccination requirement was made, which could include:

  • Accommodation request form and supporting documentation, if any
  • Emails to/from the employee about their request
  • Notes on the employer’s decision-making process
What do I do if I have doubts about the legitimacy of a religious accommodation request?

Title VII of the Civil Rights Act of 1964 requires employers that have 15 or more employees to accommodate religious beliefs that are sincerely held if it doesn’t create an undue hardship. Title VII defines “religion” very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, only held by a small number of people (and maybe even just one person).

 

We understand it can be challenging when you’ve received a religious accommodation request that you have reason to doubt. We’re happy to give some general guidance but are unable to give definitive guidance as to whether this employee has a sincerely held religious belief or whether you would be required to provide an accommodation in this situation. We recommend speaking to legal counsel to help you make this determination.

 

According to the Equal Employment Opportunity Commission (EEOC), employers should generally assume that the employee’s religious belief is sincerely held, but if “they have an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

 

Typically, the following are not considered religious beliefs and therefore don’t require an exemption from your mandatory vaccination policy:

  • Political beliefs (e.g., “Vaccination infringes on my personal liberty.”)
  • Personal preferences (e.g., “I prefer to risk getting COVID rather than getting vaccinated.”)
  • Medical beliefs (e.g., “COVID isn’t that bad.”)
  • Concerns about the vaccine’s Emergency Use Authorization (EUA) status (if the employee can’t access a vaccine with regular FDA approval)
  • Conspiracy theories (e.g., “COVID is a hoax.”)

 

Please note that there could be overlap between a sincerely held religious belief and another belief, such as a political belief—that overlap does not place it outside the scope of Title VII’s religious protections.

 

We recommend documenting the information you used to make an accommodation decision.

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Federal Law Alert: September 2021

Federal Law Alert: September 2021

One Federal Law Alert has been issued so far this month. 

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Vaccination, Masking Policies, and Returning to Work— FAQ

Are you reopening your office and wondering what your vaccination and masking polices can be? Our FAQ provides you with answers you need.

Can we bring all employees back to the office, but make the unvaccinated keep their masks on?

In most states, yes.* Currently the CDC suggests that fully vaccinated people do not need to wear masks in most places (some workplaces will be an exception, such as healthcare settings), but that non-fully vaccinated people should continue to wear masks and maintain social distance. OSHA has issued guidance that is in agreement with the CDC, as well as an Emergency Temporary Standard for healthcare. Additionally, some states or localities may have stricter mask requirements that should be followed. However, absent such requirements, having different rules for vaccinated vs. unvaccinated is acceptable since it is not based on a protected class.*


Treating these groups differently is generally not illegal employment discrimination* and employers should not think of it as treating employees more or less favorably, but simply as following current public health guidelines. This should also be emphasized when talking to employees about the different rules for those who are vaccinated or unvaccinated.


Keep in mind that some employees will be unvaccinated due to disability, pregnancy, or religious beliefs. Employers should be careful to ensure that these employees are not harassed because of their vaccination status (which will be obvious if they are required to wear a mask when fully vaccinated employees are not). While preventing harassment of any employee who is unvaccinated is a best practice to maintain morale and productivity in the workplace, employees who are unvaccinated for these particular reasons have protections under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA).


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that treat vaccinated and unvaccinated workers differently.

Can we bring back only vaccinated employees?

It depends. Unless state or local law says otherwise*, you could exclude employees from the workplace who are not vaccinated for reasons other than disability, pregnancy, or religious belief, since choosing to forgo vaccination for other reasons is not generally a protected class or characteristic.


Employers who want to exclude unvaccinated employees will need to make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief. If there is no reasonable accommodation that would allow them to be in the workplace without posing a “direct threat,” they too could be excluded. Whether a direct threat exists, and if it can be mitigated, is extremely fact specific. The EEOC provides guidance here, in Q&A K.5.  Even when you could exclude an unvaccinated employee, we generally wouldn’t recommend it.


Litigation around mandatory vaccination (which is, in effect, what an exclusion rule creates) is ramping up, and even pre-litigation expenses can add up fast. In many cases, an alternative approach of requiring unvaccinated employees to continue wearing masks and maintaining social distance will achieve similar results in term of workplace safety. That said, any approach to bringing employees back will require a workplace-specific risk assessment.


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that exclude unvaccinated workers from the workplace.

Is it illegal discrimination to treat vaccinated and unvaccinated employees differently?

It depends. Different treatment that is reasonably related to workplace safety – such as having non-vaccinated employees continue to wear masks – is generally okay.* Employers should make a concerted effort to only treat vaccinated and unvaccinated employees differently to the extent necessary to ensure the safety of all those in the workplace. Additionally, employers must make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief; treating these employees differently without trying to work with them would be illegal discrimination.


Treatment that does not increase safety directly but rewards those who are vaccinated also needs to allow for accommodations for employees who can’t get vaccinated due to disability, pregnancy, or religion. For example, if you offer $100 for getting vaccinated, or throw a pizza party for vaccinated employees, an employee with a disability that prevented vaccination would need to be able to earn the $100 or attend the pizza party by doing something else that similarly advances safety in the workplace, like wearing a mask, undergoing regular COVID testing, or taking a course on preventing the spread of viruses.


While employees who are unvaccinated for reasons other than disability, pregnancy, or religion are not entitled to these kinds of accommodations, it may make sense to provide them anyway, both to encourage the alternative safety-enhancing behaviors, and to reduce the likelihood that they will complain about how they are being treated.


There is also the possibility that treating unvaccinated employees differently will have a “disparate impact” on those of a certain race or ethnicity. Disparate impact claims generally arise when an employer is trying to do something in the best interest of the company, but the methods they use ultimately harm a certain protected class. In the case of excluding unvaccinated employees, or offering cash incentives to those who are vaccinated, there could be a disparate impact on employees of color, whose vaccination rates are lagging behind those of white employees.


Employers should also ensure that unvaccinated employees are not harassed by co-workers, managers, or customers, since disability, pregnancy, and religious beliefs are protected characteristics. Although employers do not have a legal obligation to prevent harassment of employees who are unvaccinated for other reasons, it is in the best interest of the employer to prevent this, as any kind of workplace harassment is going to lead to loss of productivity, morale issues, and quite possibly bad PR.


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that exclude unvaccinated workers from the workplace.

What do we do about employees who complain about wearing masks?

We recommend providing them with the CDC’s current guidance as well as any applicable state or local requirements. You can explain that the company is just doing what public health authorities recommend to keep people safe.

Should we have unvaccinated employees sign a waiver?

A waiver may or may not be useful or legally enforceable. We recommend you speak with an attorney if this is something you are interested in. A waiver will not eliminate your general duty under OSHA to provide a workplace that is free from hazards. Also, most states’ workers’ compensation laws do not allow employers to contractually limit their liability for on-the-job injuries or illnesses.

There are no mask mandates that affect our business. Should we require employees to wear masks anyway?

Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks in public (including the workplace) and maintain social distance, while those who are fully vaccinated may go unmasked without social distancing. OSHA has issued guidance that is in line with the CDC’s recommendations (though different rules apply in healthcare settings).

Should we make everyone keep wearing masks so the unvaccinated don’t feel singled out?

You could; masks can essentially be treated like uniforms. That said, requiring masks for those who are fully vaccinated (when not required by state or local law) is likely to cause serious morale issues and increase turnover.

Since the vaccinated people won’t get sick, can we let the unvaccinated people take their masks off too?

Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks in public (including the workplace) and maintain social distance, while those who are fully vaccinated go unmasked without social distancing. OSHA has issued guidance that is in line with the CDC’s recommendations (though different rules apply in healthcare settings).


You may also want to consider that some vaccinated people will not be as protected as others. Those who are immunocompromised will have often get a much lower level of protection from the vaccine than the general population. Those people will therefore be at higher risk around unvaccinated people who are not wearing masks.

Can we ask for proof of vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?

Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*


When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The ADA will govern the collection and storage of this information.


The Equal Employment Opportunity Commission (the EEOC), which enforces the ADA, has said that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.


Finally, just because employees think that something is or should be private or confidential doesn’t mean that they can’t be required to share it with their employer. Social Security Numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.


*It appears that some Governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through Executive Order, though as of June 28 none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place that prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.

Should we keep a record of who is vaccinated or make copies of vaccination cards? If we do, how long do we have to keep it for?

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do so is up to you, unless state or local law has imposed recordkeeping requirements. You may want to keep something simple like an excel spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to take a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file.


If state or local law requires recordkeeping, then follow those requirements, including how long the records should be kept. If no law is in play, we recommend keeping the information for as long as you keep other information in employee medical files.

If we keep a record of who is vaccinated, can we share it with managers so they can enforce any policies based on that information, such as masking and social distancing?

Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated!”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly.


Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

If an employee has had COVID, is that as good as being vaccinated?

No. The CDC differentiates between those who are fully vaccinated and everyone else. Having had COVID does not appear to provide the same level or length of immunity as the vaccine, so is not a suitable substitute when determining which safety measures should be enforced.

Can we forbid employees from wearing masks, assuming no laws say otherwise?

Theoretically, yes. However, employers will need to provide reasonable accommodation to those who are not vaccinated due to disability, pregnancy, or religion, as well as to those who are vaccinated but who will not get the same level of immunity from the shot as the general population. Additionally, since a rule like this is in direct opposition to current federal guidance, it is likely to result in complaints to OSHA, bad publicity, and lawsuits. Even if masks are not required by any law, we recommend allowing employees to wear them for any reason or no reason at all.

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