As of today, the OSHA ETS mandating vaccination and/or weekly testing for employers with 100 or more employees, the CMS Vaccine Mandate for healthcare workers and the Federal Contractor Mandate have all been the subject of nationwide injunctions barring further enforcement pending resolution of legal challenges.
This begs the question: what does this mean for employers subject to one (or more) of these mandates? Below is a short roadmap to help guide organizational decision-making.
First: for employers that had already developed and rolled out vaccination policies, employers must decide whether to continue forward with those policies. While there is no federal legal requirement to do so, employers can still choose to require vaccination. See the EEOC Guidance on this here. If an employer chooses to continue with its vaccination policy, it could consider a vaccination deadline of something other than the January 4, 2021 deadline set by the OSHA, CMS and Federal Contractor Mandates.
Second: for employers that choose to continue their vaccination policies, consider the following policy best practices:
- Ensure that the vaccination policy includes accommodations for employees with a medical condition/disability that makes vaccination unsafe or for employees with a sincerely-held religious belief that prevents vaccination. The EEOC recently updated its Technical Guidance to include specific information on religious objections to COVID-19 vaccine mandates.
- Comply with state law. With the injunctions in place, there is no longer a federal mandate and thus no longer a federal preemption argument to the extent state law conflicted with the federal vaccination mandate. For example: under Iowa H.F. 902, an employer is required to waive a vaccination requirement if the employee requests a waiver and submits a statement (i) that receiving the vaccine would be injurious to the health and well-being of the employee or an individual residing with the employee; or (ii) a statement that receiving the vaccine would conflict with the tenets and practices of a religion to which the employee is an adherent or member. In addition, Iowa H.F. 902 provides that an employee terminated for failure to comply with a vaccination requirement shall not be disqualified for unemployment benefits on account of such termination. Employers operating in jurisdictions other than Iowa should be cognizant of other state laws that may impact their vaccine policies.
- Continue with practices designed to reduce the spread of COVID-19 as recommended by OSHA and the CDC. This is true both for employers who decide to continue their vaccination policies or those who “pause” further implementation. For employers subject to the OSHA Healthcare ETS, that ETS remains in place, effective until December 21, 2021. Among other things, the Healthcare ETS requires that covered employers develop a COVID-19 plan, provide medical protection benefits to employees required to quarantine or isolate and provide reasonable time and paid leave for vaccinations and vaccine side effects. Additional information on this ETS is here
Third: for employers that choose to “pause” further implementation of their vaccine policies, keep in mind that employers may be required to implement a vaccine requirement on short notice depending on the outcome of the pending litigation. It is unclear both when the litigation surrounding the vaccine mandates will be resolved and what the outcome may be.
Fourth: for employers with unionized workforces, as a vaccine mandate would constitute a change in terms on conditions of employment, some communication with the union is recommended. At minimum, notice should be given to the applicable union of the decision to impose a vaccine requirement. Depending on the terms of the relevant collective bargaining agreement, it might also be necessary to have additional conversation with the union prior to implementation.
Finally, for all employers: effective employee messaging is key. There is substantial confusion about what the federal court litigation means for an employer’s ability to require vaccines or ask about vaccination status. Can employers require vaccines? Yes (see Section K.1). Can employers inquire about vaccination status? Yes (see Section K.9). Clearly communicate to employees how the organization will handle further implementation of its vaccine policy in light of the federal vaccine mandate stays and direct employees with questions to HR.
As these issues continue to develop and evolve, we will continue to monitor the changes and keep our clients informed. Be on the lookout for further communications from the Bradley & Riley, PC team. For more information, contact any member of the Labor and Employment Practice Group or contact our offices at 319-363-0101.