Navigating the Vaccine Mandate

Originally Published on Insurance Thought Leadership | November 21, 2021

OSHA’s Emergency Temporary Standard (ETS) regarding COVID-19 vaccine mandates leaves employers facing a complex compliance challenge involving both OSHA and laws on accommodation and leave of absence. What exceptions are allowed? How can employers track compliance? How will the courts respond?

The latest Out Front Ideas with Kimberly and Mark webinar included expert guests discussing these questions and more. Our guests were:

• Bryon Bass – senior vice president workforce absence, Sedgwick
• Travis W. Vance – partner, Fisher & Phillips

Court Decisions on Mandate Challenges

A lottery conducted by the Judicial Panel on Multidistrict Litigation determined on Nov. 16 that the Sixth Circuit will hear the consolidated legislation regarding OSHA’s ETS. This court has the power to modify or nullify the stay issued by the Fifth Circuit. To keep employers on track with the ETS’ Dec. 6 effective dates, it will be critical that the court decides by Thanksgiving. The Sixth Circuit’s active and senior status judges include eight Democratic appointees and 20 Republican appointees, which could prove favorable for vaccine mandate challengers. If the legislation is sent to the Supreme Court, it is unlikely that the circuit court’s decision will be overturned.

While OSHA’s ETS is currently suspended due to a stay ordered by the Fifth Circuit, if the stay is overturned, employers should be prepared to follow the provisions outlined in the ETS.

Key Points of OSHA’s ETS

Generally, an OSHA standard requires up to 10 years to go through the rule-making process, which involves a comment period, meeting with different industry groups and working through several rounds of drafts. An ETS provides an exception to that rule when there is a grave danger to the workplace, allowing OSHA to issue citations immediately. OSHA’s ETS regarding COVID-19 vaccination and testing will last six months, meaning on May 5, 2022, they can move this to permanent status. To cover all future pandemics, OSHA could potentially finalize the Infection Disease Standard (developed in 2009 after the H1N1 outbreak).

The ETS applies to 29 states that use federal OSHA regulations. Following their own plans, the remaining states are required to decide whether to adopt the federal ETS, rely on existing regulation or make their changes. Some states on the state plan will be expected to fight the ETS, meaning the federal government may sue to ensure they adopt the regulation.

Some of the crucial dates outlined in the ETS include:

• Nov. 5, 2021 – The deadline to start collecting documents from employees to detail their vaccination status.
• Dec. 6, 2021 – All provisions of the ETS go into effect except for testing status. This includes employee training, written policies and a vaccination roster. All unvaccinated employees will also need to begin wearing masks indoors if they are not already. The vaccination status of each employee will need to be known.
• Jan. 4, 2022 – Weekly testing begins for all unvaccinated employees.

Only employees who are entirely isolated or working by themselves full-time, like truck drivers, or employees working exclusively outdoors are exempt from the ETS. (Only 8% of outdoor construction workers fall into this group.) While testing won’t be required, employers will still need to know the vaccination status of these employees.

Federal Contractors and CMS Mandates

Apart from the ETS are two mandates that apply to federal contractors and the Centers for Medicare and Medicaid Services (CMS). Unlike the ETS, these require all employees to be vaccinated by Jan. 4 and do not provide a testing option. The federal contractor mandate applies to anyone involved with a project, even if they are only involved a portion of the time. The only exemptions to these mandates are medical or religious exemptions, where accommodations will need to be made.

Leave of Absence Requirements Related to the Vaccine

Under the ETS, paid leave is required for employees receiving a vaccine and those experiencing side effects from a dose. An employee may request up to four hours to have a vaccine administered and up to two days to recover from side effects. An employer can require an employee to use accrued sick leave but cannot ask them to take future sick leave. If they do not have any remaining sick leave, the employer must pay for the necessary time.

COVID-19 testing costs can be passed on to unvaccinated employees, per the ETS. This regulation runs counter to specific state laws that require employers to cover the time and costs of testing. It is recommended that testing be done during regular business hours to avoid overtime pay considerations. If any employee decides to get a vaccine or testing done outside of work hours, the employer is not responsible for covering the time or costs.

Disability and Medical Accommodations

If an employer already has a policy in place that mirrors the testing and mask requirements of the ETS, the employer does not necessarily need additional accommodations for unvaccinated employees. However, the mandates that require vaccination state that individuals with medical conditions covered under Americans with Disabilities Act (ADA) guidelines must be provided a reasonable accommodation. Regardless of the medical condition, employers should stay consistent in their practices, following previous standards.

For employees that fall outside of the reasonable accommodation group, like those who cannot wear a mask or get tested, further determination of an ADA-qualified disability may need investigation. Employers should not change their process with this group, and continue to engage with them and know their restrictions. Reasonable accommodations for this group may include remote work opportunities, separation capabilities, like offices with doors, or temporary work schedule modifications. Remember that accommodations do not need to last forever, and employers should use follow-up mechanisms to determine if it is still appropriate or causes a business hardship. Employers should be vigilant in their documentation and outline effective dates.

Religious Accommodations

Employees only need to demonstrate that they have a sincerely held religious belief, observance or practice that precludes them from getting vaccinated to request an accommodation. These accommodations have the same guidelines required by those that fall under the ADA, per Title VII. An employer would need hard evidence to prove an employee may be abusing this policy. As with medical accommodations, employers should be extremely consistent in their practices of religious exemptions.

How Employers Can Prepare

While many employers have already started tracking the vaccination status of their workforce, there is certainly more to the ETS orders. Employers should implement the following to stay on track:

1. Draft a written policy by Dec. 6.
2. Inform employees of the policy by Dec. 6.
3. Adopt procedures for determining employee vaccination status, including:
   • Maintaining confidential records of employee vaccination status.
   • Inquiring with employees about their vaccination status, which is lawful under the EEOC, but this should end the inquiry detail.
   • Collecting proof of vaccination or creating a confidential list of vaccinated workers.
   • Reviewing state laws regarding confidentiality and privacy of medical records.
4. Have an employee vaccination roster ready by Dec. 6.
5. Determine if you will mandate the vaccine or allow the unvaccinated employees to be tested weekly. The ETS allows employers to require vaccinations without providing the alternative for weekly testing. If an employer is planning on weekly testing, consider the logistics involved.
6. Have a plan for addressing non-compliance by employees. If an employee does not get tested or refuses vaccination, discipline will need to be outlined.
7. Develop a plan for handling accommodation requests. The policy should be robust and clear to address religious and disability issues. Communicate and administer the accommodation process thoughtfully, emphasizing individualized, confidential consideration of each request.
8. Prepare for OSHA complaints and inspections. The vaccination ETS will not displace current compliance duties related to COVID-19 prevention and mitigation. OSHA will also likely ask for your COVID-19 response plan and training, so it is critical to develop a policy and communicate its requirements to your employees. Train managers and supervisors on what to do and say if OSHA arrives for an inspection.