Vaccine Mandates - Employers with Over 100 Employees & Medical Providers
By now, you’ve heard the news. The White House has recently enacted a number of policies and requirements intended to fight COVID-19, which will inevitably result in millions of Americans getting vaccinated in hopes of finally ending this pandemic. Among those policies is one announced by Department of Labor’s Occupational Safety and Health Administration (OSHA), which has issued an Emergency Temporary Standard (ETS) regarding COVID-19 Vaccination and Testing. The ETS applies to all employers with a total of 100 or more employees, and, generally speaking, requires those employers to ensure that each of their employees are fully vaccinated against COVID-19, or wear a mask and test negative for COVID-19 on a weekly basis. This rule will also require these large employers to give paid leave for workers to get their jabs. Millions of American workers and workplaces will be impacted.
Additionally, the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services has issued an emergency regulation (known as the CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule), which applies to all medical facilities and providers who participate in Medicare and Medicaid programs (in practical terms, this means virtually every larger medical facility or provider and long term care facility in this country). This rule requires that all persons covered under its provisions are fully vaccinated by January 4, 2022. Unlike the OSHA rule discussed above, there is no mask/testing exception to the CMS mandate. A special note—the federal government and some state and local governments are going further and faster by requiring certain employers to mandate vaccination (federal employees fully vaccinated by November 22, 2021, and federal contractors by January 4, 2022).
While the vast majority of employees will have to comply with this mandate, certain employees could be entitled to exemptions based on two bedrock employment law principles: (1) sincerely held religious beliefs; and (2) disabilities. While the Equal Employment Opportunity Commission (EEOC) has issued updated guidance indicating that, as a general rule, the anti-discrimination laws it enforces (think age, race, national origin) do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated. However, that’s not the end of the story. Employers who encourage or require vaccinations must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons (pregnancy included) or based on a sincerely held religious belief—unless the accommodation would cause undue hardship. Let’s take these two principles one at a time.
Title VII of the Civil Rights Act of 1964 requires employers to accommodate an employee’s sincerely held religious beliefs, practices, and/or observances, unless it would cause an undue hardship. I underlined “sincerely” because the employee requesting such an accommodation cannot simply make something up for convenience or political reasons, and many employers are requiring “third party” support letters from religious leaders. While I will not comment on the legality of employers requiring such letters, requestors should be prepared for this ask because employers are allowed to question the religious nature or the sincerity of a particular belief if there is an objective basis for doing so. Lawyers in this area always cite the Church of the Flying Spaghetti Monster—an established religion…lol—but a faith that would likely invite further employer inquiry.
Indeed, the legal definition of religion is broad and protects religious beliefs and practices, even if they are unfamiliar or non-traditional. Because of this principle, the employer needs to operate with the assumption that the employee’s religious accommodation request is sincere. If the employee fills out his or her form and answers all the employer’s questions sincerely, the simplest solution, in the case of a remote worker, would be to allow that employee to continue working 100% remote—especially if he or she has been successful doing so. If it is truly necessary to the employer’s business to work in person, then other safeguards could be necessary. Terminating the employee should only be a last resort.
The Americans with Disabilities Act (ADA) allows employers to have workplace policies that screen out employees who pose a direct threat to the health or safety of individuals on the premises. But if a mandated vaccination requirement screens out a worker with a disability, the employer must prove that the unvaccinated employees indeed demonstrate that threat. The EEOC defines a direct threat as someone who poses a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.”
If a direct threat can be demonstrated, the employer must consider whether a reasonable accommodation can be made—like allowing the employee to work remotely, take a leave of absence, or other solutions—such as alternative jobs, duties, or roles where the vaccine would be less critical.
Just like religious accommodations, in addition to the direct threat exemption, the ADA provides employers with an “out” based on undue hardship, which can include hardships associated with accommodation costs, finances of the organization, the impact of the accommodation on operations, and other considerations. Again, terminating the employee should only be considered as a last resort.
If you’d like guidance on what to submit to your employer regarding your COVID-19 accommodation request based on your sincerely held religious belief or your disability, please call or email Ross Stadheim at MJSB Employment Justice today. Be heard – we’re here to help in this uncertain time.