Category Archives: COVID-19

Courts Allow Employers to Enforce Vaccine Mandates

Contributed by Suzanne Newcomb, October 4, 2021

Syringe and vial bottle with covid 19 corona virus vaccine drug multiple dose for injections.

As discussed in our September 9, 2021 blog, the Biden administration has directed OSHA to implement an Emergency Temporary Standard that will require employers with 100 or more employees to ensure their employees are either fully vaccinated or tested weekly for COVID-19. While employers anxiously await OSHA’s Emergency Temporary Standard and guidance on who it applies to and what it entails, federal courts are upholding vaccine mandates that employers have chosen to voluntarily implement.

In August, New York City announced it was implementing a vaccine mandate requiring all public school teachers and employees to be vaccinated. New York City teachers filed a lawsuit seeking to stop enforcement of the vaccine mandate. A Judge from the United States 2nd Circuit Court of Appeals (New York, Connecticut and Vermont) initially granted the teachers an injunction stopping the vaccine mandate on a temporary basis, while it was being reviewed by a three judge panel. On Thursday, September 30, 2021, the three judge panel reversed the judge’s ruling and removed the temporary injunction. The teachers’ attempt to appeal the decision to the U.S. Supreme Court was swiftly denied leaving the vaccine mandate in place. As such, New York City made its vaccine mandate effective today by barring unvaccinated New York City public school teachers and other employees from entering schools and placing them on an unpaid leave.

Similarly, back on September 24, 2021, Federal District Court Judge David Bunning, a Republican appointee in the United States District Court for the Eastern District of Kentucky, refused to block a vaccine mandate issued by a healthcare provider, St. Elizabeth Medical Center. In doing so, the court concluded that the employees’ constitutional arguments were not applicable to a private sector employer; the mandate allowed for both medical and religious exemptions and therefore did not violate the ADA or Title VII; and finally, no employee is “forced” to accept the vaccine. Rather, the court concluded, “these Plaintiffs are choosing whether to comply with a condition of employment, or to deal with the potential consequences of that choice.” The court added, “[i]f an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment.” Beckerich et al v. St. Elizabeth Medical Center, et al 2:21:cv-00105-DLB-EBA, Doc. #34, 9/24/2021. 

Both the New York City public schools mandate and the St. Elizabeth mandate are notable in that they are considered “hard mandates” in that neither allows periodic testing as an alternative to vaccination. 

In a similar ruling issued in August, the United States 7th Circuit Court of Appeals (Illinois, Indiana, Wisconsin) unanimously upheld Indiana University’s mandate requiring all students to take the vaccine unless they were granted an exemption for medical or religious reasons. The court’s rationale mirrored that in the St. Elizabeth’s case. The court agreed that the plaintiffs “have a right to bodily integrity” but noted that vaccination was not a requirement of all members of the public, but rather “a condition of attending Indiana University” and therefore, the court concluded, “[p]eople who do not want to be vaccinated may go elsewhere.” 

These rulings indicate that private employers and organizations are able to voluntarily implement mandatory vaccine policies.  However, to limit the risk of legal challenges to a vaccine mandate and potential legal pitfalls when implementing a vaccine mandate (including potential wage and hour issues), employers should work with experienced labor counsel prior to implementing any policy requiring vaccinations. 

We will continue to monitor and post on the many rapidly evolving matters regarding vaccine mandates.

With US Easing Travel Restrictions, Foreign National Visa Holders Ask: Can I Go Home?

Contributed by Jacqueline Lentini McCullough, October 1, 2021

Airplane in the sky at sunrise

As soon as the Biden administration announced it would ease travel restrictions in early November, my phone began ringing non-stop and email notifications started pinging like popcorn. If you work in Human Resources, you may know what I mean because it is likely your phone and email were ringing first.

HR clients were sending the messages on behalf of their foreign national workers and students who were asking if they could travel. Questions like “Can I go home for Christmas?” and “Is it safe to travel home in late November?”

Unfortunately, while the easing of restrictions is welcome, it is not a universal green light for foreign national travel.

How US Travel Restrictions Are Easing

The Biden administration announced that beginning in early November, they would lift the travel bans on international travelers from 33 countries: the Schengen area which includes 26 European countries, as well as China, Iran, India, Brazil, the U.K., Ireland, and South Africa. The bans have been in place since March 2020.

Instead, international travelers will be required to show proof they are fully vaccinated against COVID-19 and they tested negative for the virus within three days of boarding their flight to the US. The Center for Disease Control (CDC) will issue guidelines on which vaccines will be accepted.

This is welcome news. The change replaces country bans with travel consideration on an individual basis, with guidelines designed to deter the spread of COVID-19.

Questions That Remain Unanswered

While the country bans have been in effect, individuals traveling to the US have needed to demonstrate a national interest exemption. Some qualifying exemptions have included researchers for the COVID-19 vaccine, medical workers, essential services, supply services, and spouses of U.S. citizens. The administration has not said whether visa holders will still need to show a national interest exemption.

Many embassies and consulates closed during the pandemic. Some, like the embassy in Norway, have limited visa appointments for residents of Norway with emergency humanitarian cases and national interest exemptions. Collectively, US embassies and consulates have a backlog of at least half a million nonimmigrant visa petitions.

The Department of State, which runs US embassies and consulates, has not said when all of them will reopen nor have they addressed how they will process the backlog.

What We Can Say Now

The ban-lifting announcement signals that casual travel – like trips for holiday gatherings and vacations, for example – will return for vaccinated international travelers. The silence on reopening embassies and consulates and processing the visa-petition backlog indicates that visa appointments may be hard to get. Everyone who has applied for a visa while embassies and consulates were closed has a place in line before the casual traveler. In addition to the backlog, the Department of State said worldwide resources have been prioritized to help Afghani refugees relocate.

If you are a foreign national looking to travel in November and December – or even further out – you should not expect a quick response or visa appointment. You may not get an appointment within your desired timeframe.

Being apart from family and friends for so long takes a toll. I can understand the rush to visit home. But it is not worth risking being stuck outside the US, unable to return when you need to. If you can’t secure an appointment and get the travel approved, don’t go.

Given the administration’s early November timeline, I expect they will issue more information soon.

Federal Contractors’ Alert: What We Know and Still Don’t Know About Biden’s Vaccination Mandate

Contributed by Heather Bailey and Jeff Risch, September 27, 2021

Filling syringe with medicine from vial, closeup

On September 24, 2021, as instructed by President Biden’s Executive Order 14042, the Safer Federal Workforce Task Force (“Task Force”) published its COVID-⁠19 Workplace Safety for Federal Contractors Guidance. We first updated you on this Executive Order in our blog published on September 13: Who is a Federal Contractor for Purposes of the Biden Vaccine Mandate? But does the Task Force’s new guidance actually assist us in determining what federal contractors are covered under the Executive Order? Unfortunately, certainty as to who is covered by the Executive Order remains clear as mud. However, the Task Force did make the following clear for contractors with its new guidance:

  1. The guidance and the Executive Order’s Section 5 defines what contracts fall under the mandate. The term “services” is not defined in the Executive Order or in the Task Force’s guidance and the definitions remain broad. This is where many businesses will find themselves left in the dark to navigate this edict. Of course, Section 5 also includes specific exclusions, which are fairly limited. For example, there is no mention of banks that serve as a depository of Federal funds, or are an issuing and paying agent for U.S. savings bonds and notes. In light of the broad definitions adopted by the Executive Order and guidance – such banks could fall under this mandate (but, we are not 100% certain by the definitions given to us). Moreover, we are also not certain that FDIC status alone is a sufficient trigger as this is not discussed in the guidance either.
  2. Those federal contractors who are covered must have a COVID-19 safety plan in place at their workplaces. This includes mask requirements (and face shields alone do not count) as well as written social distancing rules not only for employees, but visitors as well. The safety plan must be properly published and communicated. The safety plan must also have a designated person or team of persons in charge of the plan.
  3. COVID-19 vaccination is required by December 8, 2021 for covered contractor employees (including employees of covered contractors who are not themselves working on or in connection with a covered contract). Contractors are required to get proof of vaccination from all covered employees.
  4. Reasonable accommodations must be considered for medical reasons or due to religious objections – and if accommodations are provided, there is nothing preventing the employer from implementing weekly testing. Indeed, wouldn’t an employer implement such testing as part of its COVID-19 mitigation plan?
  5. Remote contract workers must be vaccinated too since they are covered contractor employees, but the masking and social distancing requirements to do not come into play at the employee’s residence since it’s not a covered workplace.
  6. Federal agencies are encouraged to insert the vaccine mandates included in the Executive Order in all federal contracts, including those under Section 5’s list of excluded contracts. So businesses better be on the lookout for any contractual obligations inserted in federal contracts or subcontracts on this issue going forward, and should not assume the mandate does not apply to them.

As noted above, masks and physical distancing are required and all individuals in the covered workplace must comply with CDC guidance for masking and physical distancing. If required to wear a mask, it must be worn in all common areas and shared workspaces. Similar with vaccines, employers must consider exemptions to the mask mandate for disability reasons or religious beliefs. As for wearing a mask, it differentiates for vaccinated vs. unvaccinated:

  • Fully vaccinated must wear a mask in indoor settings, unless they are in an area of low or moderate community transmission, then they do not have to wear a mask. They do not have to physical distance at all regardless of the level of transmission.
  • Unvaccinated must wear a mask indoors and in certain outdoor settings, regardless of the level of community transmission. “To the extent practicable” they must maintain a distance of at least six feet from others at all times. The outdoor setting where masks are required is for outdoor activities that involve “sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.”

Community transmission levels can be found on the CDC website and must be checked at least weekly to determine proper workplace safety protocols.

Lastly, the Task Force finally provided additional guidance with FAQs. Notably, those employees who had COVID-19 previously are still required to be vaccinated. An antibody test cannot replace getting vaccinated. Also, multi-floor establishments and the ability to keep contract employees completely separate is an option so non-contract employees would be excluded from the vaccination mandate. And, yes, this guidance applies to small businesses as well since coverage under the federal contractor mandate is not dependent on the size of the employer.

There is likely more to come. Before entering into any new federal contract, or an extension of any existing contract, employers should take a look to see if any of these requirements have been added to the contract. Finally, seek competent legal counsel to opine on whether the mandate applies to your particular business or operation.

Evaluating Work from Home Accommodation Requests: Will New EEOC Lawsuit Signal A Wave Of Similar Litigation?

Contributed by Steven Jados, September 17, 2021

Freelance. Remote work. Team working. Home Office. Flat design vector illustration.

Last week, the EEOC filed a federal lawsuit in Georgia against an employer that did not allow an employee with a medical condition to work from home.  Employers should carefully consider the circumstances at issue in this lawsuit when evaluating work-from-home accommodation requests as we anticipate litigation of this sort will arise more frequently in the coming months.

The employee at issue (“Moncrief”) worked as a Health Safety & Environmental Quality Manager at a pharmaceutical manufacturing facility.  She has a number of physical impairments, including chronic obstructive lung disease and hypertension, that limit her ability to breathe, walk, and work, among other things.  In March of 2020, Moncrief’s doctor recommended that she work from home.  And around the same time, the employer had Moncrief and many other employees work from home for COVID-19 related reasons. 

As the EEOC tells it, working from home improved Moncrief’s condition.  However, in June 2020, the employer required Moncrief and all other employees to resume working at the facility five days per week. The EEOC alleges that Moncrief then asked to work from home two days per week, but that request was denied and Moncrief was terminated shortly thereafter. 

Now, to be clear, this case is in its earliest stages, and the employer has not yet had the opportunity to tell its side of the story.

That said, the main take-away for employers is this:  Because so many companies were able to successfully transition employees to remote work arrangements during the pandemic, it will be harder than ever before to deny employee requests for medical accommodations in the form of work-from-home arrangements.

This does not mean that employers must allow employees with medical conditions to work from home.  The law does not require employers to always give employees the exact accommodation they request—and employers have considerable discretion to choose their preferred accommodation so long as it is effective in removing the workplace barrier that led to the accommodation request.

The bottom line is that employers—particularly employers who prefer to require employees to work on-site—must be creative in exploring reasonable accommodations that will effectively allow employees with medical conditions to perform the essential functions of their jobs.  Employers should keep in mind, too, that it is imperative that all reasonable accommodation discussions are documented in writing, particularly where an employer has not provided the employee’s preferred accommodation.  As always, questions regarding these issues should be directed to experienced labor and employment counsel.    

Wage and Hour Questions on the Vaccine Mandate: Pitfalls for Illinois Employers Covered by the Executive Order   

Contributed by Michael Wong and Sara Zorich, September 16, 2021

Medicine doctor and vaccine dose syringe

On August 23rd Governor Pritzker issued Executive Order 2021-20 requiring  health care workers, school personnel, higher education personnel and students, and state-employees and contractors who work at state-owned or operated congregate facilities to get their first dose of a two-dose COVID-19 vaccine series, or a single-dose COVID-19 vaccine, within 10 days and be fully vaccinated within 30 days, subject to applicable medical and religious exemptions under federal and state law.

Two weeks later on September 3rd Governor Pritzker issued Executive Orders 2021-22 extending the time to get the first dose of a two-dose vaccine to September 19, 2021, and the second dose of a two-dose COVID-19 vaccine series within 30 days following administration of their first dose in a two-dose vaccination series (October 19, 2021).

Following the issuance of Executive Order 2021-22, the Illinois Department of Public Health (IDPH) issued guidance on the Executive Order. This guidance clarified that even if an employee did not have a medical or religious exemption, that they could alternatively choose to be tested for COVID-19 on a weekly basis rather than be vaccinated, unless their employer implements a stricter requirement that they be vaccinated, subject only to the applicable medical and religious exemptions.

REMEMBER: Executive Order 2021-20 only covers health care workers, school personnel, higher education personnel and students, and state-employees, and contractors who work at state-owned or operated congregate facilities.

If you have workers subject to Executive Order 2021-20, there are a lot of questions and potential pitfalls ahead, especially in the wage and hour realm. The following are common questions that should be asked not only about the Illinois Governor’s vaccine mandate, but the President’s proposed OSHA rule on vaccines and other state vaccine mandates.

Do employers need to pay for the time employees spend getting vaccinated? The answer depends on whether the employer is simply complying with the Executive Order or taking it a step farther by requiring employees get the COVID-19 vaccine. 

The Illinois Dept. of Labor (IDOL) guidance provides that if an employer requires employees to get vaccinated, the time spent obtaining the vaccination is likely compensable – even if it is non-working time. However, for optional vaccination programs, the IDOL states employees that choose to obtain the vaccine voluntarily should be allowed to utilize sick leave, vacation time or other paid time off. Based on the IDPH Guidance, there is an indication that compliance with the Executive Order is not considered a “mandatory vaccination program” for an employer, unless the employer imposes more stringent requirements. As such, unless an employer makes vaccinations mandatory, the current IDOL guidance indicates employers are not required to pay an employee for the time spent getting vaccinated.

The importance of local laws are highlighted here though due to Cook County Ordinance Sec. 42-122. Employers with a principle place of business in Cook County (which includes Chicago) must comply with Cook County Ordinance Sec. 42-122, which went into effect on July 1, 2021. The Ordinance provides that employers that have a primary business location in Cook County and who require their employees get the vaccine must compensate their employees for up to 4 hours of paid time per dose at the employee’s regular rate of pay if the employee chooses to get the vaccine during their work shift.  Further, regardless of whether a vaccination is voluntarily sought by an employee or required by an employer, employers cannot require that an employee get vaccinated only during non-shift hours and shall not take any adverse action against any employee for taking time during a shift to get vaccinated.

What about travel time and expenses to get the COVID-19 vaccine?  If an employer imposes a mandatory vaccine requirement, under federal and Illinois state law, employers would likely need to reimburse the travel time and expenses for the employee to get vaccinated.  Under the FLSA, the time spent traveling to undergo “special tests” required by the job (e.g. physical examinations, fingerprinting and drug testing) is compensable time. As such, if you put into place a mandatory vaccination policy, we would recommend employees report the time it took them to get to/from the vaccination site and such time would be compensable work time. In terms of travel expenses (e.g. mileage and tolls), Illinois law requires employers reimburse expenses that are required of the employee in the discharge of employment duties and inure to the primary benefit of the employer. Thus, it is recommended that employers also reimburse for the employee’s mileage to/from the vaccination site.

Is there a difference between Vaccinations vs. Testing? – YES! While the Executive Order indicates that vaccinations are optional, weekly testing if an employee is unvaccinated is not optional. As a result, under the FLSA and IDOL guidance, COVID-19 testing for covered employees under the Executive Order would likely be considered compensable time. Additionally, even though the IDPH guidance states that the Executive Order does not require employers to pay for testing, this does not take into consideration the FLSA and state laws that require employers to pay for the cost of business expenses, including medical tests that are required.

The vaccine mandate landscape is starting to heat up and will be continuously changing in the near  future. Employers are waiting on more information and guidance from the President’s proposed OSHA’s rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Illinois’ Executive Order vaccine mandate is a good primer on issues that employers throughout the United States will need to consider once the proposed OSHA rule is issued and in dealing with any state or local vaccine mandate. As these are new and complicated issues, employers should speak with experienced labor counsel in addressing vaccine mandates prior to implementing any policy requiring vaccinations.

Who is a Federal Contractor for Purposes of the Biden Vaccine Mandate?

Contributed by John R. Hayes, September 13, 2021

doctor hand wears medical glove holding syringe and vial bottle with covid 19 corona virus vaccine

On September 9, 2021 President Biden announced sweeping new vaccine mandates for federal employees, federal contractors, and an upcoming OSHA Emergency Temporary Standard Rule for companies with more than 100 employees. In light of this, already many employers are asking the question, “Am I a federal contractor subject to the vaccine mandate?” While the Executive Order regarding federal contractors is brand new, and we are awaiting more clarification from the Safer Federal Workforce Taskforce (Task Force), there is some language contained in the Order that can give employers an early roadmap.  The Executive Order applies to federal contracts that are:

  • Either a contract or contract-like instrument;
  • Entered into, extended, renewed, or has an option exercised on or after October 15, 2021; 
  • For any of the following:
    • services, construction, or leasehold interest in a property;
    • services covered by the Service Contract Labor Standards (formerly known as the Service Contracts Act);
    • concessions; and
    • work relating to federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The Executive Order explicitly excludes:

  • Federal grants;
  • Contracts with Indian Tribes;
  • Employees who perform work outside of the United States;
  • Contracts equal or less than the simplified acquisition threshold (generally $250,000); and
  • Subcontracts solely for the provision of products.

However, the Executive Order leaves several unanswered questions that will hopefully be answered by the Task Force, which must issue its guidance by September 24, 2021.  For example, it is not clear if the mandate will be for onsite contractors only, but initially it appears to also cover employees working at the contractor’s facility.  It specifically states it applies to “workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  Thus, the Executive Order is phrased to apply to any workplace locations where contract work is performed, rather than to employees performing the work.  Also, it appears to eliminate the option for federal contractor employees, provided for in the July 29, 2021 federal employee vaccination mandate, that allowed those workers to choose to wear a mask, socially distance, and subject themselves to regular testing instead of getting vaccinated.

As with all vaccine mandates, there will likely be exceptions for disabilities or sincerely held religious beliefs.  Each employer will have to make individual determinations regarding these exemptions. 

Some general takeaways at this time are that if you are a business operating under an existing federal contract that is not being renewed or has options exercised, you are not subject to the Executive Order.  Similarly, if your contract is for less than $250,000 you are likely not subject to the mandate.  However, it appears as if it is not limited just to onsite contractors (such as those in the construction industry), and so the vaccine mandate could expand to many more businesses (such as banks) that are operating under a federal contract yet not providing onsite work to federal agencies. 

Of course, all this is very preliminary given the lack of guidance from the Task Force. But for now, employers can at least get an idea of whether or not they are a contractor for purposes of the Executive Order.  While the specific details of the mandate are still to come, businesses who have new or renewed federal contracts (greater than $250,000) coming up can expect some sort of vaccine mandate on at least part of its workforce, and should begin to plan accordingly. We will be monitoring this situation closely and will provide updates as they occur.

OSHA to Issue Mandatory Vaccination and Testing Rule for Certain Employers

Contributed by guest author Matthew Horn, September 9, 2021

In a purported effort to increase vaccinations, the Biden Administration just announced its plan to have OSHA issue an Emergency Temporary Standard requiring employers with one hundred or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis. The Emergency Temporary Standard will also require mandatory vaccinations for: 1) federal employees; 2) employees of federal contractors; and 3) employees at healthcare facilities receiving Medicare or Medicaid. The Emergency Temporary Standard will impact approximately 100 million American workers. 

Since the announcement was made today, and not many details were provided, applicable employers will have some time—possibly a few months—to process and comply with the new requirements. Additionally, while the rule making process is taking place, there will be no shortage of legal challenges to the planned rule. Moving forward, we will keep you advised as to any and all updates on this issue.

What to Consider Before Implementing a Health Insurance Surcharge for Unvaccinated Employees

Contribute by Kelly Haab-Tallitsch, September 7, 2021

stethoscope wrapped around health insurance policies, soft focus

The recent announcement that Delta Airlines will begin imposing a $200 per month health insurance surcharge on unvaccinated employees has prompted many employers to consider whether a similar surcharge may be an alternative to mandating COVID-19 vaccinations for employees.

But the myriad of laws governing group health plans require that employers tread carefully. This is an approach that comes with a multitude of regulatory requirements and may carry legal risks. Employers implementing a health insurance surcharge must comply with federal anti-discrimination laws requiring exceptions for medical conditions or a sincerely-held religious belief, and should consider the impact of a surcharge on the health plan’s affordability under the Affordable Care Act (ACA).

Exceptions for Medical Conditions and Religious Beliefs

Premium surcharges or other incentives tied to a group health insurance plan trigger the Health Insurance Portability and Accountability Act’s (HIPAA) wellness program rules.  HIPAA prohibits employers from charging employees different premiums based on a health factor; however, an exception exists for wellness programs, allowing employers to charge higher premiums or offer incentives to get employees to take certain actions or meet specific health-related goals, provided the wellness program meets certain requirements.

The requirements for wellness programs are different depending on whether a program is “participatory” or “health contingent.”  It is unclear whether a COVID-19 vaccination surcharge would be considered a “participatory” or “health contingent” wellness program. In order to avoid potential penalties for noncompliance, an employer should assume it is a health-contingent wellness program, similar to smoking cessation programs that impose a surcharge on smokers. Under a health-contingent wellness program an employer must offer a “reasonable alternative standard” to employees that are unable to receive the COVID-19 vaccine due to a medical condition. This means that these employees must be allowed to avoid the surcharge by meeting a different requirement. One example would be allowing an employee to avoid the surcharge by undergoing weekly or biweekly COVID-19 testing or by watching a video on vaccine safety and the dangers of remaining unvaccinated.

Under Title VII, employers must also provide an accommodation to an employee that is unable to receive the COVID-19 vaccine due to a sincerely-held religious belief.

ACA Affordability and Surcharge Limits

Under the HIPAA wellness plan rules, a surcharge cannot exceed 30 percent of the cost of employee-only coverage under the health plan. This is a fairly high limit and typically does not present an issue. But employers subject to the ACA employer mandate and considering surcharges should also confirm that the cost of the health plan including the surcharge still meets the ACA affordability requirements. In order to avoid triggering a penalty under the ACA, the cost for employee-only coverage under the lowest cost health plan option can be no more than 9.83% of the employee’s income. Depending on current health plan premiums, even a small surcharge can cause premiums to exceed the affordability threshold for lower wage employees.

Next Steps

An employer considering implementing a vaccine surcharge should consider the alternative standard(s) the employer is willing and able to offer employees who cannot receive the vaccine due to a medical condition or sincerely-held religious belief, taking into account the administrative requirements of the alternative standard (i.e., monitoring of weekly COVID-19 test results), and analyze the impact of the proposed surcharge on the employer’s compliance with the ACA affordability requirements. Employers should consult with employee benefits counsel before implementing a health insurance surcharge to ensure compliance.

Mandating Vaccines in the Workplace: How to Implement a COVID-19 Vaccine Policy

Contributed by Suzannah Overholt, August 26, 2021

Syringe and vial bottle with COVID-19 corona virus vaccine drug

Now that the Delta variant is surging, employers are venturing into the arena of mandating that their employees take the COVID-19 vaccine. But deciding to mandate vaccination and actually implementing such a requirement is no easy feat.

Rolling out a vaccine requirement involves a delicate balancing act. Employers are gauging the overall vaccine hesitancy in their workforce, the number of employees who may resign rather than be vaccinated, and the difficulty of filling the vacancies. Those considerations have led some employers to wait to impose a vaccine requirement until their competitors do so.

The realities of these considerations are apparent in nursing homes’ response to the announcement that their facilities will be required to mandate the vaccine for their employees or risk losing federal funding. Nursing homes are now concerned that, if the rest of the health care industry is not subject to the same requirement, they will lose even more employees than they have already. 

So how should an employer face this issue?  Some employers have chosen to use an incremental approach. First, they ask employees to let them know if they are vaccinated or plan to get vaccinated. As we reported previously, the EEOC has authorized such inquiries, but the information regarding an employee’s vaccination status must be kept confidential. 

Some employers offer incentives before mandating the vaccine.  As we noted in our previous blog, offering incentives for employees to be vaccinated has been approved by the EEOC. The amount of the incentive depends upon whether the employer is administering the vaccine (lower incentives allowed to avoid coercive effect of incentive) or whether it is being administered by an entity independent from the employer (higher incentives allowed). If the first round of incentives does not achieve the desired effect, some employers have increased the incentive.

Another approach is to implement an education campaign to increase awareness about the benefits and actual risks of the vaccine. This is generally done by directing employees to web sites and other resources with objective information about the vaccines.

Finally, if the incentives and education efforts are not sufficient, employers may mandate the vaccine. The concepts that apply to fostering positive employee relations are a good guide for how to do this. 

First, employers should develop a clear policy that lays out the following: 

  • A definition of what constitutes being vaccinated. Generally speaking, this would be receiving both doses of a two-dose vaccine or a dose of a single-dose vaccine. 
  • A clear deadline for being vaccinated.
  • A requirement that any booster doses also be taken and a timeline for those. 
  • The availability and process for requesting a disability or religious based exemption.
  • Whether PTO will be allowed for time spent taking the vaccine and for any potential side effects.
  • What disciplinary action will be taken for failure to comply.

Once the policy is established, communication is key. Employers should reiterate the benefits of the vaccine and explain the risk to everyone if someone is not vaccinated. A written communication should be distributed to all employees stating the basis for the policy and the expectations.

Finally, the policy must be implemented. Proof of vaccination provided by employees must be kept confidential. Requests for exemptions must be reviewed and acted upon.  Employees who do not comply with the vaccine requirement or accommodations granted pursuant to an exemption must be disciplined. 

Obtaining the advice of qualified counsel before embarking on this process is advisable.

OSHA Revises Its Mask Guidance and Encourages Vaccination of Employees

Contributed by Rebecca Dobbs Bush and Matthew Horn, August 17, 2021

Blue medical face masks isolated on white

Following the Centers for Disease Control’s updated mask and COVID-19 guidance dated July 27, 2021, OSHA finally updated its own mask and COVID-19 guidance on August 13, 2021. The updated guidance can be viewed here.  

Under the new guidance, OSHA recommends that employers require their employees—even those who are fully vaccinated—to wear masks when indoors in areas of substantial or high transmission of COVID-19.  Areas of substantial or high transmission are determined by county and updated by the CDC daily. The CDC’s updated map showing transmission rates by county can be viewed here.  As of today, the vast majority of the counties around the country are considered areas of substantial or high transmission, thereby implicating the updated guidance. 

The new guidance also recommends that fully vaccinated individuals with known or suspected exposure to COVID-19 be tested 3-5 days after exposure, and wear a mask while indoors for 14 days or until they receive a negative test result. Additionally, OSHA emphasizes that vaccination of individuals is the best way to prevent severe illness or death from COVID-19, and recommends that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing. Prior to this updated guidance, OSHA had only published this recommendation for healthcare employers.

If your business operates indoors in an area of substantial or high transmission, we recommend that you require all employees and visitors to wear a mask regardless of vaccination status. However, given the language of its press release and updated guidance, OSHA appears hesitant to enforce this updated guidance—likely acknowledging that many employers will struggle with the implementation of ever-changing mask rules based on local transmission rates.