The legal battle over the Biden Administration’s COVID vaccine/testing mandates has produced a dizzying array of conflicting court rulings, leaving employers at a loss as to how, if, and when to comply. 

To bring you up to speed, earlier this month, a 3-judge panel of the 6th Circuit Court of Appeals ruled that OSHA’s vaccine-or-test Emergency Temporary Standard (“ETS”) for workers at companies with 100 or more employees could take effect. Last week, the U.S. Supreme Court announced it will hear argument on the private employer and health care worker mandates on January 7, 2022.  The Administration has put on hold its implementation of the federal contractor vaccine mandate in response to a federal district court’s order enjoining the Executive Order on a nation-wide basis. 

As we await the Supreme Court’s ruling, the private employer vaccine-or-test ETS is in effect.  However, OSHA announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements, which will not be enforced until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.  Employers who fail to comply with the ETS may be subject to penalties, up to $13,653 per violation for serious violations.   

While it’s possible the Supreme Court will invalidate or stay enforcement of the ETS before January 10, it’s equally possible the ETS will remain in effect.  Given this awkward timeline, covered employers have to decide NOW whether to comply with the ETS or delay compliance (and risk incurring penalties) pending the outcome of the Supreme Court ruling.  Regardless of the Supreme Court’s ruling, employers of any size can voluntarily implement a vaccine mandate or vaccine-or-test mandate, provided they make exceptions for employees due to their sincerely held religious beliefs or medical condition.  While some states (not AZ) have banned such voluntary employer vaccine mandates, those laws are likely preempted (and therefore unenforceable) by federal law.       

To assess what compliance with the private employer ETS entails, we encourage you to review OSHA’s summary of the ETS requirements (OSHA ETS Home Page), as well as the FAQ’s concurrently issued by OSHA. (FAQs).

As the pace of employer-mandated COVID-19 vaccinations are on the rise, the EEOC has recently posted updated and expanded technical assistance (Sections L.1-L.6) addressing questions about religious objections to such mandates.

The Key Updates to the technical assistance are summarized below:

• Employees and applicants must inform their employers if they seek an exception to an employer COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.  They do not need to use any “magic words” to make this request.
• Title VII requires employers with 15 or more employees to consider requests for religious accommodations, but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
• An employer should generally assume a request for religious accommodation is based on sincerely held religious beliefs.  However, if an employer has an objective basis to question either the religious nature or sincerity of a particular belief, the employer can make a limited factual inquiry and seek additional supporting documentation.
• Employers that demonstrate they are unable to reasonably accommodate an employee’s religious belief without an “undue hardship” are not required to accommodate an employee’s accommodation request.  To establish undue hardship for a religious accommodation request, the employer need only show the accommodation would cause it to bear more than a “de minimis,” or minimal cost (as compared to a medical exemption request which places a higher burden on employers to demonstrate undue hardship).  Costs may include not only direct monetary costs, but also the burden on the business, including the risk of spreading COVID-19 to other employees or the public.

Best Practices for COVID-19 Vaccine Exemption Requests (both religious and medical):

• Designate a department or position where such requests should be directed.
• Notify employees in writing of the exemption request process.
• Develop forms to facilitate the processing and evaluation of exemption requests.  Each request should be reviewed individually based on the specific factual context.
• Carefully document the factual basis for any undue hardship claim.
• Develop a filing system to make sure documentation supporting these requests are maintained as confidential and sensitive business information separate from an employee’s personnel file.

On September 9, 2021, President Biden issued a sweeping COVID-19 Action Plan aimed at “reduc[ing] the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”  This action plan, if fully implemented, will directly and materially impact tens of millions of federal and private sector workers in the following ways:

• Require all private employers with 100+ employees to ensure their workers are vaccinated or tested weekly.  The implementation of this requirement is subject to the Department of Labor’s Occupational Safety and Health Administration (OSHA) issuing an Emergency Temporary Standard (ETS).
  • NOTE:  OSHA’s new ETS will be effective immediately upon issuance in all federal OSHA jurisdictions.  States that have their own OSHA-approved plan and agency (like Arizona), can either adopt OSHA’s ETS or draft their own alternative standard that is at least as effective in protecting employees as the OSHA ETS within a specified time frame.
• Require vaccinations for all federal workers.  See Federal Employee Executive Order.
• Require vaccinations for employees of certain contractors and subcontractors that do business with the federal government for new, extended or renewed contracts that are effective on or after October 15, 2021.  See Federal Contractor Executive Order.
• Require vaccinations for workers at Medicare and Medicaid participating hospitals and other health care settings.  See CMS Press Release re Expanded Requirements.
• Require employers to provide paid time off to get vaccinated and to recover from vaccine-related illness.

What We Don’t Know

Until further guidance is provided by OSHA and the other federal agencies charged with implementing these requirements, affected employers are very much in a wait and see mode.  Among the many critical unanswered questions are:

• Will these requirements survive the onslaught of anticipated legal challenges? In fact, the Arizona Attorney General has already filed a lawsuit challenging the vaccine mandate.
• If the ETS requirements survive legal challenge, when will they become effective and how long will they last?
• How do you count the 100-employee private employer coverage requirement?  
• Do these requirements apply to remote workers?
• Can employers require employees to use existing paid time off for vaccine and vaccine recovery time?
• Are employers required to compensate employees for weekly testing time and pay for the cost of the test?
• How are employers expected to verify the vaccination status or negative test results of their workers and maintain these records?   
• What are the penalties for non-compliance?

What to Do

To prepare for the potential implementation of these vaccination/testing mandates, affected employers should consider taking the following action:

• Assemble a COVID-19 vaccination/testing team to be the subject matter experts and point of contact on this topic.
• Conduct a confidential vaccination status survey of your workforce so you can assess the potential disruption to your business.
• For covered private employers, determine if your organization will give employees the option to be tested in lieu of getting vaccinated or implement a vaccine only policy. 
• Establish a protocol to evaluate religious and medical vaccine exemption requests.   
• Establish a protocol to confidentially maintain records relating to compliance with these requirements.  
• Consider whether your organization will provide new paid time off for vaccination/testing time or require employees to use existing paid time off (assuming this is permitted by the ETS).
• Prepare for staffing shortages caused by employees who leave the organization (either voluntarily or involuntarily) due to non-compliance with your organization’s requirements.    

We are closely monitoring these developments and will post an update when more information becomes available.  In the meantime, if you have any questions, please contact us.

On May 28, 2021, the EEOC updated and expanded technical assistance concerning vaccinations in the employment context. The key updates to the technical assistance are summarized below:

• Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19 (and wear masks), so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations (i.e., disability, sincere religious belief and pregnant workers).
• Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
• Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
• Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

On March 10, 2021, Congress passed the American Rescue Plan Act of 2021 (“Rescue Plan”) and President Biden signed it into law the following day.  The Rescue Plan includes several provisions that directly impact the workplace.  These provisions are summarized below:

• Extends the Families First Act Coronavirus Response Act’s (“FFCRA”) optional COVID-19 paid leave benefits through 9/30/2021.  Covered employers (less than 500 employees) may, but are not required, to offer these benefits.  Those that do are entitled to a tax credit to offset the cost of providing this paid leave  

• Expands FFCRA benefits in the following ways, effective 4/1/2021:
  • Provides emergency paid sick leave (“EPSL”) for the following additional qualifying reasons: (i) obtaining a COVID-19 immunization or recovering from a medical condition related to such an immunization; and (ii) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 when an employee has been exposed to COIVID-19 or the employer has requested such test or diagnosis
  • Provides an additional 10 days of EPSL
  • Expands the reasons for qualifying for paid emergency FMLA leave (“EFML”) to include any of the reasons that would qualify for EPSL (including the 2 new EPSL reasons set forth above). Before this expansion, EFML was only available if the employee was unable to work (or telework) to care for a child whose school or place of care was closed or unavailable due to the public health emergency
  • Removes the 2-week waiting period to qualify for EFML
  • Raises the aggregate cap on EFML from $10,000 to $12,000

• Requires employers that voluntarily provide these benefits to do so in a uniform manner without discriminating against certain categories of workers

• Extends the unemployment benefits under the CARES and Consolidated Appropriations Acts through 9/6/2021, with additional tax benefits for some individuals

• Provides a 100% COBRA premium subsidy effective April 1-Sept. 2021 for employees involuntarily terminated who want to remain on their employer’s health insurance     

We will provide further updates after the Department of Labor issues guidance to address the implementation of these provisions.  If your organization operates outside of AZ, you should check state law to determine if there are additional state or local laws that mandate paid leave or other benefits related to the pandemic.