On Sept. 9, 2021, President Biden announced that OSHA will issue an Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees must require employees to either be vaccinated or submit to weekly testing. Employers who do not comply with these requirements could be fined up to $14,000 per employee. The OSHA ETS will require employers to offer paid time off to employees to receive the vaccine, as well as any time necessary to recover from a reaction to the vaccine.
At this time, the COVID-19 vaccine mandate does not provide:
- a detailed definition of an “employee”
- whether there will be exceptions for employees who work remotely
- when the mandate will become effective
- how much time employees will have to get vaccinated
- whether reasonable accommodation requirements apply for individuals with medical conditions or sincerely held religious beliefs against vaccinations
- or how testing will be paid for (e.g., through an employer’s group health plan, directly by the employer, or by the employee)
Further, we do not know if “employees” who are out on a workers compensation claim, short-term disability, long-term disability, FMLA, or maternity leave will be required to be vaccinated while they are out of the office.
The OSHA ETS is also silent on addressing employees who have gained natural immunity through a prior COVID-19 infection. We expect that OSHA will provide additional guidance regarding the mandate by Oct. 1, 2021.
Until further guidance is provided by OSHA, employers are encouraged to communicate with their workforce about what is known and unknown about the mandate in order to calm employee stress and concern. If an Employee Assistance Program (EAP) is in place, employers can remind employees of its availability as a resource to confidentially convey their concerns.
How to Mandate the COVID-19 Vaccine as a Condition of Employment
There are two methods large employers can take to implement the mandate. They can contract with a provider to administer the vaccine, either onsite or offsite, or they can instruct employees to get the vaccine from a provider and provide proof of vaccination status to the employer.
Protecting Employee Privacy
One key issue when administering a vaccine through a contracted provider is the need to familiarize themselves with employees’ medical history through a series of prescreening questions to ensure the vaccine is medically appropriate.
These pre-screening questions could elicit information about a disability, which could provoke the ADA’s provisions regarding disability-related inquiries and, in turn, violate Title II of GINA, which prohibits employers from using, acquiring, or disclosing an employee or family member’s genetic information.
If employees use their local pharmacy or own medical care provider, then the ADA’s provisions regarding disability related inquiries is not a concern. Further, GINA is not provoked with this approach if the employer purely requires employees to provide proof of vaccination. In this case, the employer could require an employee to show proof of receiving the vaccine (a copy of their vaccine card), and this would not amount to a disability-related inquiry.
Similar to FMLA and ADA records, vaccine records are subject to general privacy protections, and must be stored separately from an employee’s personnel records. Further, employees should be told not to provide any medical, disability, or genetic information in their documentation evidencing receipt of the vaccine, as receipt of that information may implicate the ADA or GINA.
Vaccine Waivers and Reasonable Accommodation
If an employee is unable to receive a COVID-19 vaccine due to a disability, then the employer would need to have a policy to ensure the employee does not pose a direct threat to the health or safety of the workplace. In essence, the employer would need to show the individual’s failure to vaccinate is a direct threat to other individuals because of a “significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced or eliminated without reasonable accommodation.”
Even if a direct threat is found, the employer may still be required to determine whether a reasonable accommodation is possible, without undue hardship, which could eliminate or reduce the risk to the workplace.
Can You Terminate an Unvaccinated Employee?
It is possible for an employer to remove an unvaccinated employee from the workplace if there is a direct threat; however, this does not necessarily mean the employer can terminate the employee. Employees may have other rights under applicable EEO laws or other federal, state, or local laws.
The EEOC has already filed lawsuits against employers for violating Americans with Disabilities Act related to the vaccine mandate.
Furthermore, when assessing risk, employers need to consider the amount of their workforce that is unvaccinated, and the frequency or type of contact between vaccinated and unvaccinated employees — or unvaccinated employees and customers or clients.
Outright termination without considering any reasonable accommodation could result in an ADA violation and a lawsuit. Reasonable accommodation could include a telecommuting option for employees. If the employee’s job is such that it can be performed remotely, employers may need to consider this option depending on the other facts and circumstances. Further, employers must consider CDC guidance when assessing whether an effective accommodation that would not pose an undue hardship is available.
Ultimately, if a reasonable accommodation cannot be made without undue hardship, then termination may be permissible. These determinations should be made on an individual basis taking all facts and circumstances into consideration.
Sincerely Held Religious Beliefs Under Title VII
Employers also must consider whether religious accommodations may be necessary for employees who are not vaccinated. Under Title VII, an employer must reasonably accommodate an employee’s sincerely held religious belief absent an undue hardship.
However, even if the employee provides supporting documentation, the employer is not required to allow the employee in the workplace if a reasonable accommodation is not available or if accommodating the employee would cause an undue hardship to the employer.
An employer should not automatically terminate an unvaccinated employee without considering whether an accommodation is possible or necessary. Per the EEOC, if an employee cannot receive the COVID-19 vaccine because of a sincerely held religious belief, practice, or observance, then the employee may be terminated if there is no available or possible reasonable accommodation.
Mandating COVID Vaccine as Condition of Health Coverage Eligibility
HIPAA nondiscrimination rules specifically state that benefits must be available on a uniform basis for all “similarly situated individuals” and benefits cannot be limited or excluded based on a participant’s health factor, which includes “receipt of health care.”
Because an employee’s status as vaccinated or not vaccinated is a health factor, an employer cannot exclude an employee from participating in the health plan because he or she did or did not receive the COVID-19 vaccine.
Employer-Provided COVID-19 Incentives
Some large employers may consider incentivizing employees to receive the vaccine to minimize the burden and cost of weekly testing requirements. Further, some small employers may choose to incentivize vaccines for the safety of their workforce and customers/clients.
Incentives are generally monetary in nature, and can be given to employees who show proof of receiving the vaccine. Examples include cash bonuses, gift cards, additional paid time off, and/or other items of value.
Increasing Group Medical Premium for Unvaccinated Employees
In September, Delta Airlines imposed a $200 surcharge on health insurance premiums for employees who are not vaccinated. Employers should consider the Affordable Care Act (“ACA”) and how a surcharge may impact affordability in determining whether coverage is “affordable” under the Affordable Care Act.
Final Take-Aways From The COVID-19 Vaccine Mandate
Large employers should be on the lookout for the upcoming OSHA ETS. In the meantime, you should discuss how you intend to implement the mandate once effective. Small employers may continue to evaluate the approach they intend to take, if any.
If large or small employers intend to implement incentives, they should consider the EEOC’s guidance; applicable federal, state, and local laws; and any potential employee relation issues they may face as they evaluate their options.
For purposes of a mandate, employers should be mindful of the ADA, Title VII, GINA, and applicable state or local laws, and should engage in an individualized analysis of the facts and circumstances of each unvaccinated employee with counsel.
Further, small employers should ensure any vaccine requirements serves some business purpose. For example, if an employer has a mostly remote workforce and remote employees do not engage in business travel or directly engage with clients, requiring the vaccine would not likely serve a business purpose.
We recommend both small and large employers work directly with counsel when implementing a vaccine mandate or making employment termination decisions.
The information provided is not legal advice. The content is intended as a general overview of the OSHA ETS. Employers are encouraged to seek counsel on legal questions relating to the content of this article.
Andrew Royce, CIC, CRM, CLCS, CRIS is Co-Founder & President of BlueStone Advisors, LLC, an insurance brokerage and consulting firm specializing in Property & Casualty, Executive Risks, Employee Benefits, and Captives. He has over 20 years of industry experience and can be reached at aroyce@bluestoneadvisors.com.
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