COVID-19 Vaccine Mandate - FAQs
On September 9, 2021, President Biden announced forthcoming federal vaccine requirements that are estimated to affect 100 million Americans, including private-sector employees and healthcare workers and federal contractors. The following are some frequently asked questions (FAQs). Additional information can be found at the recently released FAQs from the Safer Federal Workforce Task Force, among other places.
In General
How will President Biden’s vaccine/testing mandate be enacted? It will be enacted through a forthcoming rule by the Occupational Safety and Health Administration (OSHA) that will carry penalties of $14,000 per violation per the administration.
What is the standard OSHA must satisfy in order execute the vaccine/testing mandate? OSHA is authorized to issue emergency temporary standards (ETS) only if it can show that (1) employees are exposed to grave danger from the hazard; and (2) the ETS is necessary to protect employees from that danger.
Does the mandate meet the “grave danger” and “necessary to protect” criteria? Despite being pressured by various institutions to apply its original COVID ETS to all workplaces, OSHA limited its applicability to the healthcare sector in June 2021. Presumably, it did this at least partially out of concern that it could not meet the “grave danger” and “necessary” criteria for a broader standard in light of accelerating vaccinations. However, since then, the Delta variant has picked up steam and there is a growing consensus that the danger is escalating and the need for a mandate is clear.
Has OSHA had success with prior ETSs? OSHA has issued ETSs 9 times prior to its COVID-19 health care mandate in June 2021. The courts have fully vacated or stayed the ETS in 4 of the prior 9 cases and partially vacated the ETS in another one.
When will OSHA issue the ETS? It took nearly 6 months and 40 stakeholder meetings before OSHA issued its first COVID-related ETS this past June. It should not take OSHA anywhere near that long to issue this ETS; however, some are projecting up to 60 days, i.e., by no later than early to mid-November and perhaps weeks earlier.
When will the ETS become effective? After it is published in the Federal Register. This will probably occur within 15 to 30 days of when OSHA issues the ETS.
How long will the ETS remain in place? The ETS can only remain in place for 6 months before it would need to be replaced by a permanent OSHA standard. Any such permanent standard would need to undergo a formal rulemaking process, which typically includes a stakeholder comment period.
Will the ETS be challenged in court and, if so, what are the arguments to invalidate it? Yes, the ETS will be challenged. Arizona, for example, has already done so, arguing that it is a violation of the Equal Protection Clause because it requires U.S. workers to be vaccinated but does not require undocumented immigrants crossing the border to be inoculated. Other arguments include that it does not meet OSHA’s “grave danger” and “need to protect” standard since COVID danger varies considerably by region, that it infringes upon the rights of citizens to bodily integrity, that it violates principles of federalism by exercising power reserved for the States, and that it violates the separation of powers principle by exercising quintessentially legislative powers, among other things. There are arguments that can and will be made against these arguments, too. Legal experts differ on whether the ETS will be upheld or vacated. Federal courts have generally denied constitutional challenges to vaccine mandates so long as they are not discriminatory in nature. Thus, legality of the ETS may hinge on whether OSHA satisfies the “grave danger” and “need to protect” standards.
How will the ETS affect state-enacted COVID mandates or rules? Any state mandates or plans must be at least equally stringent to OSHA’s ETS. They can be stricter; however, they are not permitted to be less strict without being preempted by the ETS.
For Employees
Will the ETS provide for exemptions for employees who decline to be vaccinated for medical or religious reasons? Yes, according to James Frederick, Acting Administrator of OSHA.
What is a religious exemption? Under Title VII of the Civil Rights Act of 1964, individuals cannot be discriminated against based on their sincerely held religious beliefs, practices, or observances. Some religions, or sects thereof, absolutely object to vaccines for example (e.g., Christian Scientism or the Dutch Reformed Church). The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, defines “religion” very broadly. It not only includes church membership and belief in God, for example, but also firmly and sincerely held moral or ethical beliefs. For example, many who hold to a pro-life or anti-abortion belief have claimed a religious exemption to the COVID-19 vaccine on the basis that the vaccines were developed or tested using cell lines derived from aborted fetuses. If an employee’s sincerely held religious beliefs, practices, or observances keep them from being vaccinated, their employer must provide a reasonable accommodation unless it would pose an undue hardship (e.g., continued masking, social distancing, teleworking).
What is a medical exemption? Under the American with Disabilities Act (ADA), an employer is required to follow an interactive process when an individual claims a medical basis for an exemption. Medical bases to the COVID-19 vaccine include, among potentially other things, allergies to an ingredient in a COVID-19 vaccine, a history of Guillain-Barre syndrome, and in some cases those with a history of being immunocompromised.
Will the ETS offer testing as an alternative to vaccination? Yes, with the exception for federal workers and contractors, even those who are teleworking. “They will not have the option to test weekly as an alternative to the vaccine,” according to Stephanie Gatson, an attorney with Bradley Arant Boult Cummings—unless, of course, they satisfy an exemption for medical or religious reasons. “To protect the health and safety of the federal workforce and to promote the efficiency of the civil service, all federal employees covered by Executive Order 14043 and without a legally required exception need to be fully vaccinated by November 22, 2021, regardless of where they are working,” the Biden Administration’s task force said. “Employees who are on maximum telework or working remotely are not excused from this requirement.” All that being said, private employers with more than 100 employees can decline to offer testing in lieu of vaccinations even though the ETS will not require that. In other words, private employers can create their own mandatory vaccine policy subject to valid exemptions.
Is there an exception to the mandate for those who have already had COVID-19? No, unless one can establish it on the basis of a medical exemption. This may be unlikely, however, since the CDC is urging people who have already had the virus to get vaccinated.
Will the ETS apply to remote workers? According to various law firms, the Department of Labor has indicated that the ETS will not apply to remote workers so long as they do not work in the office. However, it is still likely to apply when workers visit any work location, regardless of whether the employer controls the location. Also, as indicated above, the mandate will apply to federal employees and contractors regardless of whether they work from home exclusively.
Can your employer create a vaccine policy prior to the issuance of the ETS? Yes. Many did so prior to the announcement of the ETS, and many more will do so prior to when the ETS goes into effect.
For Employers
How can employers voice their concerns about the mandate prior to the issuance of the ETS? Employers can write a letter to join a coalition. For example, the Littler Workplace Policy Institute, which has personnel in the DMV, partners with the business community to assist employers with their concerns. It is soliciting data from employers that details “infeasibility of implementation, issues with compliance and enforcement, or extensive cost measures” so it can influence OSHA to formulate a better ETS.
Will employers be required to pay for testing? While it is unlikely OSHA’s ETS will require it, several states have laws that predate COVID-19 requiring employers to fund mandatory medical tests or reimburse their employees for same.
Will employers be required to provide paid time off for workers to get vaccinated and recover from any side effects? Yes. The federal government’s directive “ensure[s] that no worker loses a dollar of pay because they got vaccinated.”
How will OSHA calculate the 100-employee requirement? In debriefings it has given regarding the mandate, OSHA has indicated that it will calculate the 100-employee requirement to mean 100 employees in an enterprise rather than per worksite. OSHA is expected to address this question further in FAQs before issuing the ETS.
If an employee refuses vaccination and testing, is the employer permitted to fire the employee? Possibly, assuming the employee does not have an exemption and is not working exclusively on a remote basis (employees of the federal government or contractors excluded). That being said, employers should strive to be consistent in their treatment of employees who refuse to vaccinate or test and do not qualify for an exception.
FAQs Disclaimer
The above FAQs are not intended to be comprehensive or exhaustive and do not constitute legal advice for your particular circumstances, issue or concern, nor do the FAQs create any attorney-client relationship or duty on our part to assist you. For more information about whether Bosson Legal Group, PC may be able to assist you (e.g., advocating for the validity of an exemption and/or alleging discrimination for failing to honor a legitimate exemption), please contact us at (571) 775-2529 to inquire about a consultation.