Nov 8, 2021
Over the past week, the federal government has been busy pushing out new guidance and standards as it relates to COVID-19 vaccine mandates. We are, therefore, updating our COVID-19 updates on vaccine mandates and handling reasonable accommodation requests.
If you are an employer with over 100 employees, it is important that you begin to take steps to develop a plan for how to implement these requirements understanding that the requirements and guidance are subject to change.
On November 4, 2021, OSHA released its Emergency Temporary Standard (ETS) for employers with 100 or more employees (counting part time employees, temporary employees, and using company-wide totals), which requires COVID-19 testing or COVID-19 vaccination of their employees, subject to certain limited exemptions.
In summary the ETS provides:
• Vaccination and Testing Policy. Employers with more than 100 employees must develop and institute a written policy that requires (1) COVID-19 vaccination; or (2) weekly COVID-19 testing and mandatory face coverings for unvaccinated employees in the workplace while indoors or in a vehicle with a person for work purposes. Employers must implement the vaccine and testing mandate by January 4, 2022. All other requirements must be implemented by December 5, 2021.
• Exemptions. There are exemptions for (1) employees for whom a vaccine is contraindicated; (2) employees for whom a delay of the vaccine is medically necessitated; (3) employees entitled to a reasonable accommodation because they have a disability or sincerely held religious beliefs that contradict with the vaccine requirement; (4) employees while they work from home; (5) employees who do not report to a workplace where customers or co-workers are present; and (6) employees who work exclusively outdoors. Under the ETS, the weekly testing plus masking option is available to all employees, not simply those who may require an accommodation. The ETS provides no exception for employees who have had COVID-19.
• Payment. Employers must give employees paid sick time to get vaccinated and sick leave to recover from any side effects of the vaccine.
• Proof of Vaccination and Testing. Employers must obtain proof of vaccination status and maintain records and a roster of vaccination status. It is critical that employers have a secure and confidential process for collecting and maintaining vaccination and testing documentation separate and apart from individual personnel files.
• Notice to Employees. Employees must be provided with information about the ETS standards. Click here to see the notice.
• Fines. There are significant fines that can be imposed for failing to comply with the ETS
This ETS does not apply to employers with fewer than 100 employees.
There are already lawsuits challenging the validity of the ETS. In fact, over the weekend, the Fifth Circuit Court of Appeals stayed the ETS until further notice on the basis that the ETS presents potential “grave statutory and constitutional issues” and requested expedited briefing this week. While the outcome of this and other challenges leaves the ETS and vaccine and testing mandate in flux, if you are an employer with over 100 employees, it is important that you begin to take steps to develop a plan for how to implement these requirements understanding that the requirements and guidance are subject to change. As the deadline for implementation nears, employers should confirm whether the ETS has been upheld and/or otherwise modified. Employers should consult with an attorney if they have any questions on the latest orders and guidance.
On October 25, 2021, the EEOC updated its technical assistance for employers processing religious accommodation requests from a vaccine mandate. While the EEOC guidance is directed at employers, if a housing provider decides to implement a vaccine mandate, it may well be instructive.
We are highlighting some of the EEOC guidance below. Click here to view the complete guidance.
• Employees must inform their employees if they need an exception to COVID-19 requirements, including a religious accommodation, how they can do so. The EEOC provides a model religious accommodation request form that can be used.
• The EEOC says employers should assume a religious accommodation request is based upon a sincerely held religious belief unless the employer has an objective basis to doubt it, in which case the employer may make a limited factual inquiry as to the religious basis of the request. Title VII does not protect social, political, or economic views or personal preferences.
• Employers should consider alternative options to a vaccine mandate for those who require an accommodation such as (1) periodic testing; (2) wearing a face mask; (3) working at a social distance; (4) working a modified shift; (5) working from home; and/or (6) re-assignment.