Questions concerning employer vaccine mandates are a top issue for workers who want to understand their rights as our nation continues to battle COVID-19 and the recent surge of illnesses caused by the Delta variant. As we have noted in prior blog posts, generally speaking, employers can require vaccination as a condition of employment, with some limited exceptions for medical reasons or sincerely held religious beliefs. See: https://www.fmr.law/blog/2021/august/workplace-vaccine-mandates-for-employees/
On September 9, 2021, President Biden announced a COVID-19 Action Plan aimed at reducing the number of unvaccinated Americans by using regulatory powers and other actions to increase the number of American workers covered by vaccination requirements. As part of the plan, the President issued an Executive Order requiring vaccination for federal workers and for healthcare workers. The Plan also calls on the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule for private companies to require a “fully vaccinated” workforce or require unvaccinated workers to produce a negative test result on at least a weekly basis before coming to work. While the details of the Plan and the OSHA rule have not been issued yet, here is what we know so far about the Plan’s requirements for workers:
COVID-19 Vaccinations Will Be Required for all Federal Workers and Contractors that Do Business with the Federal Government
The Executive Order requires all federal executive branch workers to be vaccinated by November 22, 2021, with limited exceptions for those entitled to reasonable accommodation. The EO does not apply to employees in the Congressional or Judicial branches. The same vaccine requirements for federal employees in the executive branch apply to contractors that do business with the federal government. However, because the rules governing vaccination for government contract employees have not yet been issued, the deadline for contractor vaccination has not been announced, and employees who work for federal government contractors will likely have a longer time frame within which to be vaccinated.
COVID-19 Vaccinations Will Be Required for All Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings
Vaccinations will be required for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The vaccine requirement will apply to nursing home staff as well as staff in hospitals and other Medicare/Medicaid regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.
All Private Employers with 100+ Employees Must Ensure their Workers are Vaccinated or Tested at Least Weekly
OSHA is developing a rule that will require all companies with 100 or more employees to ensure their workers are either fully vaccinated, or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Employees can opt-out of the weekly testing requirement by becoming vaccinated. OSHA will issue an Emergency Temporary Standard (ETS) to put this requirement in place.
Along with the vaccine requirements, the President’s Plan aims to increase COVID-19 testing by mobilizing industry to expand easy-to-use testing production, making at-home tests more affordable, sending free rapid at-home tests to foodbanks and other community organizations, and expanding free pharmacy COVID-19 testing.
The Plan Requires Employers to Provide Paid Time Off to Get Vaccinated
The Plan is designed to make sure that worker don’t lose pay getting vaccinated. The OSHA rule will require employers with more than 100 employees to give workers paid time off for the time it takes for them to get vaccinated and to recover from any possible side-effects from vaccination. Federal employees will be entitled to take duty time for vaccination, but executive branch agencies will no longer offer additional paid time off.
Are There Exceptions To The Mandate If I Cannot Be Vaccinated?
Employer vaccine mandates are subject to the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) which protects workers from disability discrimination, and Title VII of the Civil Rights Act which protects workers from discrimination based on religious beliefs. If a worker has a disability or a sincerely held religious belief that prevents them from getting vaccinated, the employee may be entitled to a reasonable accommodation under these civil rights laws, so long as providing that accommodation does not cause an undue hardship on the employer.
For an employee who can’t receive the vaccine because of a medical condition, before the employee could be excluded from the workplace, the employer must show that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. The employer must attempt to accommodate an employee who can’t take the vaccine due to a disability unless there is no reasonable way to do so. Only after conducting a review and finding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace. But the decision to exclude the employee does not automatically mean that the employer can simply fire the unvaccinated worker who is eligible for accommodation. The employer should consider whether there are other alternatives in addition to required periodic COVID-19 testing, such as wearing a face mask at work, social distancing, working a modified shift, or the option to work remotely.
Federal law also requires employers to accommodate employees who have a sincerely held religious belief which prevents them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer. If that is the case, the employer can exclude the employee from the workplace. But just like with a disabled employee who cannot get the vaccine, an employer cannot automatically terminate the employee who is eligible for accommodation. Instead, the employer should consider whether any other accommodations can be provided that would enable the employee to continue working, such as remote work or work in an alternate location.
Generally, if an employee does not meet one of the two narrow criteria for possible accommodation under the ADA or Title VII, an employer may terminate the employment relationship if the employee declines to be vaccinated.
In the case of unionized employees, union workers who work for an employer with fewer than 100 employees may have the right to bargain with their employer over a mandate, and employers with more than 100 employees may be able to bargain over how a mandate is implemented. If the employer seeks to discipline employees who do not abide by a mandate, it becomes a mandatory subject of bargaining. If your collective bargaining agreement reserves the right for the employer to issue safety rules, however, the employer likely can impose a mandate unilaterally.
In the coming weeks the federal government is expected to announce additional COVID-19 rules and guidance, including the anticipated OSHA rule, which will have an effect on vaccine requirements and other working conditions related to COVID-19 and worker safety. Like the pandemic itself, the laws and regulations related to workers and COVID-19 policies are changing rapidly.
If you are terminated from employment because you do not meet one of the exemptions, you may apply for unemployment benefits. However, employees are only eligible to receive unemployment benefits if they are terminated without just cause. Employers will likely argue that failure to comply with the employer’s workplace rule regarding vaccination is a termination with cause. In that case, benefits may be denied.
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