While President Biden’s new national vaccination mandate for federal employees/contractors and choice of vaccination or weekly testing for private companies with more than 100 employees seems simple on the surface, it raises many legal questions. When and how should employees get tested weekly? What about businesses that operate in states that have restricted or banned vaccination mandates? Are part-time workers counted as part of the 100-employee mandate?
Dorsey and Whitney law firm held a webinar during which their attorneys explored and answered many of the questions surrounding the implementation and legality of Biden’s new federal mandate. Here are some of the most commonly asked questions about the vaccination mandate:
Do employees of large companies have to get vaccinated?
No, only federal employees, and employees of federal contractors and subcontractors are required to get vaccinated. All workers of private companies with more than 100 employees have the choice to either get vaccinated or submit a weekly COVID-19 test before coming into work. Some religious or ADA exemptions may apply.
What does this have to do with OSHA’s COVID-19 ETS (Emergency Temporary Standard)?
The United States Department of Labor’s Occupational Safety and Health Administration implemented a healthcare Emergency Temporary Standard (ETS) that went into effect in June and outlined temporary emergency requirements for healthcare workers. The ETS lasts six months, after which the emergency rules can be challenged legally.
OSHA will be rolling out a new ETS to enforce this wider-reaching mandate, which will clear up some legal confusion and questions. There is a formal six-month period to implement the rulemaking process. Currently, 22 states have OSHA-approved state plans in place, attorney Drew James said.
Are part-time/contracted/seasonal employees counted as part of the 100+-person mandate?
The short answer is that we don’t know yet.
“The prior ETS that was implemented in June for healthcare workers was also really broad in its workplace coverage,” attorney Jillian Kornblatt said. “What employees are covered and not covered? What if an employer has a few employees in multiple states? Do you add them together? The next ETS will supposedly clarify that but for right now, we don’t know.”
What is the best way to implement a company policy?
The attorneys at Dorsey & Whitney recommend drafting an official company vaccine and testing policy that “ensures vaccination requirements and includes potential exemptions” and anticipates changes to the requirements due to fluctuations in COVID-19 variant dangers. Employers should anticipate a lot of questions and complications, particularly among those who choose to do weekly testing.
“Passion runs high on this issue in both directions,” Kornblatt said. “I think letting employees have a little time to get their heads around the idea of this new reality is a good idea. Then there's a lot of details to figure out. Will your insurance plan cover testing? What are you going to do about test results? Who will collect weekly test results? What are you going to do with the weekly data? Are you going to require the test the day before or three days before they’re scheduled to come into work?”
What if I do business in a state where the legality of vaccination mandates is being challenged?
Currently, there are at least three states that are expected to challenge the federal government’s new mandate, which they believe should be a state’s choice, not a national requirement, including Texas, Florida, and Montana.
“Right now in Montana, you cannot discriminate between vaccinated and unvaccinated people,” attorney Gabrielle Wirth said. “It’s going to have to play out between lawsuits to determine whether or not OSHA can preempt the state law here. The safest thing to do right now is to encourage your workers to get vaccinated, provide incentives and tell them that to the extent the federal government wins in the battle of whether or not they can regulate in this area, you intend to comply because you think it's the right thing to do.”
How should national employers enact this mandate?
“It really comes down to state lines, and you need to start with your state laws and see what your state law allows or doesn't allow,” attorney Katie Ervin Carlson said. “Employers may have to have different policies for different states. They'll be operating it much like it would with other employment decisions that have [different state laws].”
How do I provide reasonable accommodation under the Americans with Disabilities Act?
Vaccine mandates are currently required to be compliant with the Americans with Disabilities Act (ADA), which mandates “reasonable accommodation” for employees with disabilities or medical challenges in regard to taking the vaccine. In order to be exempt, employees must have a “direct threat” that could come as a result of taking the vaccine, and the threat of “substantial harm” must be identified, current, and based on medical evidence.
“Employers should remember, you have the right to get verification of the medical condition that it constitutes a disability, and that that disability would preclude someone from becoming vaccinated under the various types of vaccinations,” attorney Michael Droke said.
Are there religious exemptions to this mandate?
Vaccine requirements must also comply with Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin, specifically protecting those with “bona fide religious beliefs” that would exempt them from taking the vaccine. For example, if a vaccine has pork product in it (the COVID-19 vaccines do not) or since some of the current vaccines have used aborted fetuses for medical testing, that could possibly count as an exemption.
“The bigger problem we're seeing now is the number of pastors of different faiths, who are taking a position contrary to what their own churches are saying,” Gabrielle Wirh said. “For example, the Pope has come out in favor of taking the vaccine, but local priests will give out letters of exemptions saying that because of someone's objection to abortion, they should be exempted on a religious basis. It’s becoming a very hot area of litigation.”
Are there any guidelines for employees that wish to undergo weekly testing?
Dorsey & Whitney suggests designating a human resources representative to be responsible for reviewing and recording employee proof of vaccination and weekly testing. Again, rules for weekly testing (when, where and how) should be made clear in a company’s updated vaccination policies.
Do employee vaccination statuses have to be confidential?
Employee medical information must be kept confidential, but vaccination statuses do not need to be and do not count as a medical inquiry.
What happens if an employee refuses to comply?
The biggest rule, Dorsey & Whitney attorneys said, is “don’t be a jerk.” Companies should provide reasonable accommodations and options for those who do not want to get vaccinated or tested, including offering unpaid leave until the employee is in compliance, as well as progressive discipline, or graduated steps for dealing with those that refuse to be in compliance.
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