MAKING SENSE OF EMPLOYERS’ RIGHTS AND REQUIREMENTS: COVID-19 VACCINES

Updated: December 20, 2021

OSHA’s COVID-10 Vaccination and Testing Emergency Temporary Standard (ETS) is back in place after the Sixth Circuit Court of Appeals lifted the injunction on 12/17/2021 that was previously blocking the ETS following multiple court challenges. 

The deadline for the COVID vaccination mandate has been extended to January 10, 2022, and citations for noncompliance will not be issued until February 9 as long as employers are making a good faith effort toward compliance. 
Original Publish Date: November 23, 2021

The landscape is shifting quickly with respect to the vaccination rights and requirements for employers. This information is intended to focus on what employers may or must do related to the vaccination status of their employees and job applicants. Keep in mind that this varies depending on the size of your organization, whether you are a private or federal employer, and, in some cases, it depends on where you operate.

Mandated Vaccinations for Federal Workers

If you are a federal employer, you should be familiar with the Executive Order requiring COVID-19 vaccinations for federal employees that has been in effect since September 9, 2021.

Laws Impacting Private Sector Employers

An Emergency Temporary Standard (ETS) requiring healthcare workers to be vaccinated was issued on June 10, 2021, and is currently scheduled to end in December 2021 but will likely be extended.

Beyond those who qualify as healthcare workers, the latest update regarding the federal ETS requiring nearly all private sector workers (for organizations with 100 or more employees) to be fully vaccinated or tested weekly for COVID-19 in order to operate in the workplace has been suspended by court order. The ETS is slated to be effective January 4, 2022.

In the meantime, employers should consider continuing their preparations to be compliant if the ETS is upheld. For the most updated information and resources for complying with the pending ETS, please refer to the Occupational Safety and Health Administration (OSHA) website. This site includes information about required vaccination policies, vaccination status reports and documentation, systems to assist with vaccination, notification processes for positive tests or diagnoses, as well as notices of workers’ rights and penalties for providing false information.

Additional guidance for private employers on protecting workers by preventing and mitigating COVID-19 in the workplace can be found here on OSHA’s website in addition to OSHA’s FAQ on the ETS.

State and Local Considerations for Employers Governing Vaccinations

There may be state and local laws that determine whether you are allowed to require employees to show proof of vaccination. It’s important to consult with your legal team to determine if these regulations apply to your workforce.

With respect to the federal ETS, it is intended by OSHA to preempt state and local laws, although this is being contested in court in many jurisdictions.

Accommodation Protections – Disability and Religious Rights

Federal laws provide protections for people with disabilities under the Americans with Disabilities Act (ADA). People with underlying conditions that qualify as a disability and people who are pregnant are protected from disparate treatment. Religious accommodations are also required under federal law if it does not cause undue hardship for the employer’s business operations. The EEOC recently updated its guidance regarding religious exemptions from COVID-19 vaccines, and you can read more details about that here. In addition, the EEOC clarified its anti-retaliation protections on November 17, 2021, which can be found in Section M – Retaliation and Interference of its Technical Assistance Q&A.

Reasonable accommodations for individuals who qualify for vaccination exemptions or for workers in at-risk occupations with mixed vaccination status could include:

• Adhering to testing protocols
• Working remotely – determine if physical proximity is truly an essential function of the job
• Flexible schedules – allow working during hours or shifts where there is less exposure to others
• Reassignment to another position
• Incremental time off (paid or unpaid) but not indefinite leave as this is not reasonable

Your Right to Protect the Workplace

Federal EEO laws do not prevent employers from implementing vaccination requirements. As an employer, you have the right to protect the health and safety of your employees and customers. With that said, new mandatory vaccination policies are still subject to requirements such as disability accommodation requests, so employers should continue to perform the interactive process to determine what accommodations may be appropriate. If you have remote workers who have no contact with clients or co-workers, it will be hard to justify that they are a direct threat to others and therefore may be difficult to mandate vaccinations or requirements to test regularly. For employers with an onsite workforce and a mandatory vaccination policy, Cadient Talent can help configure these updated terms of employment and pre-screener questions for you in the Candidate Experience.

For More Information

Another resource for suggested COVID-19 accommodations is the Job Accommodation Network (JAN) website. For more information about COVID-19 requirements, refer to the EEOC’s website and consult with your legal team.