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COVID-19 Vaccine Mandates
An Overview:
In July 2021, the Biden Administration mandated Covid-19 vaccinations for federal employees and contractors. Private companies were also encouraged to require all their employees to receive the Covid-19 Vaccine.
In November 2021, the Biden Administration took further action through the Department of Labor and the Department of Health and Human Services which widened the reach of the Covid-19 Vaccine Mandate.
The Department of Labor’s Occupational Safety and Health Administration (OSHA) promulgated vaccine mandates requiring employers with 100 or more employees to require the vaccine or force their employees to submit to weekly Covid-19 testing.
The Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) provided their own mandate that requires healthcare workers at all facilities participating in Medicare and Medicaid to be fully vaccinated.
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Exemptions to the Vaccine Mandates
There are two paths to receiving an exemption from the Covid-19 Vaccine Mandates
(1) Religious Exemption
(2) Medical Exemption
Religious Exemptions
The right to request a religious exemption stems from Title VII of the Civil Rights Act of 1964, which protects workers from discrimination on the basis of religion, among other things. The operative arm of the Act, the Equal Employment Opportunity Commission says employers must provide reasonable accommodations for workers who have sincerely held religious beliefs — unless doing so poses an undue hardship.
In processing the religious exemption request, an employer may probe the sincerity of the claimed religious belief. Employers are allowed to ask what the employee believes, why they believe it, and how the belief affects their life decisions and their decision regarding the Covid-19 vaccination. These questions may include questions about an employee’s vaccination history or church attendance. What employers cannot do is question the validity or correctness of the employee’s religious belief. Employers cannot ask why they interpret scripture or other religious authority a certain way, and they cannot be asked how their beliefs are consistent or inconsistent with others of the employee’s creed. Under the law, everyone is entitled to their own unique beliefs.
An employer can deny requests for religious exemptions if they find that the employee is insincere. If the employer has found that an employee’s religious belief is sincere, the employer will decide what reasonable accommodation can be provided based on a variety of circumstances. The law only requires a reasonable accommodation absent undue burden. What constitutes a reasonable accommodation may vary, however under most circumstances employers should be encouraged to provide the same accommodations that they have provided the employee through the Covid-19 Pandemic.
Medical Exemptions
Under the Americans with Disabilities Act ("ADA"), an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.
If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.
Generally, medical exemptions start with an employee notifying the employer and will involve receiving a certification of disability from a licensed physician.
Federal Employees and Contractors
Fully Vaccinated Deadline is: January 18, 2022
The Safer Federal Workforce Task Force states that federal contractor employees must be fully vaccinated no later than Jan. 18, 2022. This requirement is not affected by the block of the OSHA emergency temporary standard.
The SFWTF guidance noted that people are considered fully vaccinated against COVID-19 two weeks after they have received the second dose in a two-dose series or two weeks after they have received a single-dose vaccine. Therefore, federal contractor employees must have received the second dose of the Pfizer or Moderna vaccinations or the one dose of the Johnson & Johnson vaccine by Jan. 4, 2022.
Testing in lieu of vaccinations is not an option for federal employees or contractors affected by the mandate, however, exemptions with reasonable accommodations will apply.
Some states have sued, challenging the vaccination requirement for federal contractors, however that issue is still pending in court.
The federal government and contractors will use its "usual" process for enforcement of the mandate, and ultimately will be subject to termination, once the discipline process is finished.
OSHA RULES
The Occupational Safety and Health Administration ("OSHA") issued an Emergency Temporary Standard ("ETS") which directs employers with 100 or more employees to require the vaccine or force their employees to submit to weekly Covid-19 testing.
**IMPORTANT UPDATE**
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
Employers who are covered by the ETS.
The ETS generally applies to employers in all workplaces that are under OSHA’s authority and jurisdiction, including industries as diverse as manufacturing, retail, delivery services, warehouses, meatpacking, agriculture, construction, logging, maritime, and healthcare. Within these industries, all employers that have a total of at least 100 employees firm or corporate-wide, at any time the ETS is in effect, are covered.
Workplaces not covered by the ETS.
This standard does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or in settings where employees provide healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS (29 CFR 1910.502).
Certain employees are not subject to the requirements.
The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home or employees who work exclusively outdoors.
CMS RULES
The Department of Health and Human Services’ Centers for Medicare and Medicaid Services (CMS) provided their own mandate that requires healthcare workers at all facilities participating in Medicare and Medicaid to be fully vaccinated.
The staff vaccination requirement applies to Medicare and Medicaid-certified provider and supplier types, including Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Medicare Federally Qualified Health Centers, and Long Term Care facilities.
This mandate applies to all employees regardless of clinical responsibility or patient contact. The requirement includes all current staff as well as any new staff who provide any care, treatment, or other services for the facility and/or its patients. This includes facility employees, licensed practitioners, students, trainees, and volunteers. Additionally, this also includes individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements.
Certain employees are not subject to the requirements.
Individuals who provide services 100 percent remotely and who do not have any direct contact with patients and other staff, such as fully remote telehealth or payroll services, are not subject to the vaccination requirements outlined in the CMS mandate.