An employment law attorney answers your vaccine mandate questions

As the White House’s new rules come into effect, here’s a rundown of what you need to know.

Vaccine mandate guidance

The pandemic is profoundly transforming every aspect of work.

COVID-19 is also quickly altering what companies are responsible for. With all this change issuing forth at such a dizzying pace—and so much misinformation about vaccine mandates swirling around—it helps to have a bit of wise counsel on your side.

With that in mind, we connected with Scott Warrick, a practicing employment law attorney, HR pro and best-selling author, to help companies stay on the right side of the law as President Biden’s vaccine mandate measures go into effect. (Keep in mind that dates may fluctuate, as the mandate has already been temporarily halted by an appeals court.)

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Below are his answers to crucial questions every business should get clarity on right now:

Ragan: How can companies verify whether the new vaccine mandates apply to them? Are there any exceptions to the 100-employee rule?

Warrick:

1. All executive branch federal workers are required to be fully vaccinated by November 22, 2021.

  • And as CNN reports, “The Biden administration announced Thursday [Nov. 4] that its vaccine rules applying to private businesses with 100 or more employees, certain health care workers and federal contractors will take effect January 4.”
  • The executive order does not apply to congressional or judicial branch.
  • There are limited exceptions for those entitled to reasonable accommodations.

2. All federal contractors are required to be vaccinated.

  • The deadline for contractor vaccinations has been set for December 8, 2021.

3. Centers for Medicare & Medicaid Services (CMS) Vaccine Mandate

  • CMS will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid.
  • Vaccine mandates will be required as a condition of Medicare/Medicaid reimbursement.

4. OSHA Emergency Temporary Standard (ETS): 100-employee rule

  • The plan instructs OSHA to develop an emergency temporary standard requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly.
  • The rule will require employers to give workers paid time off for the time it takes to get vaccinated and recover from potential side effects.
  • The mandate will potentially affect 80 million workers – 64% of the U.S.
  • The Attorneys General of 24 states, including Ohio, have promised to challenge the emergency temporary standard.
  • 98% of U.S. companies are small businesses that employ under 100 people, and therefore will not be affected by this emergency temporary.

Ragan: If my employees are not vaccinated, can they produce a negative COVID-19 test result on at least a weekly basis in order to comply?

Warrick: This exception only applies to those employees who work for an employer with 100 or more employees. All other employees in all the other groupings must be vaccinated.

Ragan: What specific exceptions exist, and can companies challenge employees’ religious or medical exemption claims?

Warrick: There are two major exceptions to these vaccination mandates.

1. Reasonable accommodations – ADA and Title VII

  • If a worker has a disability or a sincerely held religious belief that precludes vaccination, the employee may be entitled to a reasonable accommodation under civil rights laws, so long as providing that accommodation does not cause an undue hardship on the employer.
  • Medical exemption – ADA
  • Employers are required to accommodate workers with qualifying medical conditions that interfere with vaccination, unless providing the accommodation would cause undue hardship.
  • The threshold is high for employers to grant workers accommodations given that no known medical conditions interfere with vaccination.
  • According to the CDC, the only people who shouldn’t get vaccinated are those who had a severe allergic reaction, called anaphylaxis, immediately after a first vaccine dose or to a component of the COVID-19 vaccine.
  • An employer can ask a worker for additional information about their claim of being medically ineligible for the vaccine. But requests for medical information must be narrowly tailored to focus on the particular condition or case at hand.

2. Religious exemption – Title VII

  • Employers are required to accommodate an employee’s “sincerely held” religious belief, observance, or practice.
  • No major religions have expressed anything but support for the vaccines.
  • There are fairly broad standards about what constitutes a religious belief or practice. It’s not necessary for beliefs to be part of an organized religion, and the beliefs can be new, uncommon, or seem illogical or unreasonable to others.
  • An employer is not required to accommodate an employee’s religious beliefs if doing so would impose an undue hardship on the employer’s legitimate business interests.

Ragan: How should companies handle employees who are hesitant to get vaccinated—and perhaps are being vocal about their opposition?

Warrick: If the employer falls under one of the groups of employers who are covered by the vaccine mandate, the employers can empathize and sympathize as much as they want, but the employers will most likely have to comply.

Those who do not could receive $14,000 fines and maybe lose their right to do business with the federal government, depending on which category the employer falls under.

Editor’s note: This is an excerpt from an exclusive story for Ragan’s Communications Leadership Council members. To get full access to stories like this—in addition to exceptional best-practice sharing, networking and team training—apply to become a member today.

COMMENT

17 Responses to “An employment law attorney answers your vaccine mandate questions”

    Vincent Ferraccioli says:

    Since the vaccine does not guarantee you won’t get Covid, how can anybody mandate the vaccine? The CDC has actually stated that they cannot guarantee that getting the vaccine will prevent you from getting Covid! Mandated vaccines is does not sound like “Real Science”. OSHA needs to look at the reality. President Biden is not a scientist or engineer. Dr. Fauci’s credentials are questionable since he was wrong about the HIV virus, which is where his so-called status comes from. If a person who receives the vaccine can get or even spread the virus, than OSHA needs rescind this mandated vaccine order or needs to change their leadership.

    Charles Braxton says:

    If my employer mandated the vaccine in order for me to keep my job and I complied and got the vaccine ( I did not want it) so that I would meet their original deadline and now my employer has rescinded the mandate, do I have a case against them?

    Drew says:

    Who is liable for vaccine side effects or death? Employers that mandate? OSHA? The Federal Government? Vaccine manufactures?

    Linda Diprimio says:

    I live in Philadelphia Pennsylvania and it was just mandated that the casino hast to get vaccinated. What can I do to fight this where can I find a lawyer?

    Nate says:

    On 11/30 I submitted a Religious exemption in my own words, one from my local pastor, and another from my virtual pastor, also a high medical history of death due to clotting in my family (most recently my uncle passed away from a clot after the jab). On 12/15 I received a vile letter that read, “Nate, January 3, 2022 will be your last day. We will put you on an unpaid 30-day administrated leave.”

    What firms are taking on these cases? I must proceed to stand up and fight for this unconstitutional mandate.

    Jack says:

    If an employee meets the religious beliefs exemption to vaccination, are they still subject to the weekly testing requirement? Does reasonable accommodation although the employee to avoid the weekly testing requirement?

    John Smith says:

    So now that Omnicron and delta have ripped through the vaccinated and proven the vaccine is completely ineffective are we all still supposed to follow the voodoo science here? This is about submitting to control.

    Jessica says:

    My job is mandating that everyone gets vaccinated or receive a weekly covid test. I am pregnant and the vaccine has proven to lead to miscarriages or still births. The tests have also proven to lead to nasal complications and so much more. If I do not comply I will be fired. Vaccinated and unvaccinated individuals can still get and spread covid. What legal action can I take, this is unconstitutional and discrimination.

    Jennifer Davis says:

    Since OSHA is part of this ridiculous”mandate”, I have an OSHA related question that no lawyer so far that I have called can answer. I work for a big box retail Company. In my 35 years of retail, all employers including my current one, use/have cleaning products/chemicals that as an employee, I may come in contact with daily. OSHA is required to provide what is called Safety Data Sheets on each chemical in our store. This sheet lists every “ingredient” in each chemical/cleaner. With OSHA mandating I place this vaccine IN my body, they must provide a Safety Data Sheet on each vaccine available, correct? So that I KNOW what is IN each vaccine before I come in contact with. Also these sheets inform an employee of what to do if there is an adverse reaction. Thoughts?

    KEITH NELSON says:

    My exemption request for influenza and covid injection was recognized by my employer. However my request for exemption from testing was not recognized stating it is “hospital policy”. This feels off and doesnt feel like the hospital is taking this request seriously.

    KEITH NELSON says:

    My exemption request for influenza and covid injection was recognized by my employer. However my request for exemption from testing was not recognized stating it is “hospital policy”. This feels off and doesnt feel like the hospital is taking this request seriously. How can vaccines be “mandatory” and subject to accommodation, but testing be “mandatory” and not subject to accommodation?

    gettested says:

    Tests for all and wearing a mask is logical. Requiring vaccines for all is not logical. People who are fully vaccinated get and easily spread covid. According to a recent study in the Lancet, “fully vaccinated individuals with breakthrough infections have peak viral load similar to unvaccinated cases and can transmit infection…” Likewise, “People who get vaccine breakthrough infections can be contagious,” says the CDC. Therefore, vaccinated people Even more compelling, …“vaccinated individuals still have the potential to infect others. Worse, one CDC report shows that vaccinated people can still be superspreaders. If vaccinated people still get and spread covid with the same viral load as unvaccinated people then vaccinated people should be tested for covid in the same manner as unvaccinated people, correct? Correct. CDC also states, “vaccination is NOT sufficient to prevent transmission of covid virus.” If vaccination is not sufficient to prevent transmission of covid virus, then why are employees being fired for not being vaccinated? An irrational fear of covid doesn’t entitle a workplace to discriminate against persons based on vaccine status. Simply put, there are no compelling or extraordinary reasons to selectively discriminate against unvaccinated people when vaccinated people can still infect others, have similar viral load and be contagious. Therefore, given the absence of logical grounds to continue such discrimination employers should immediately cease and desist such discrimination. An unvaccinated person carries the same level of safety as a vaccinated person, given both can get and spread covid. A more rational, fair and least restrictive solution would be to provide rapid covid testing for all employees, both vaccinated and unvaccinated, provide free testing at stores, schools and hospitals and require all people to wear masks indoors until there’s ample evidence of herd immunity. The highly transmissible Omicron variant could help countries reach herd immunity as cases continue to rise, health experts say. More compelling, experts say Omnicrom is, “less severe than other variants” and “delta variant is the most common worldwide variant.” Thus, the Biden admins argument that Omicrom is a threat is a falsehood. Nobody wants to get covid. But it’s going to happen. Thus, it’s more important to take rational, reasonable steps and to put more effort into treating covid, not firing nurses, doctors, teachers, who don’t want to get a vaccine that the sciense itself says, “Is not sufficient to prevent transmission of covid.”

    Therefore, someone’s irrational, idiotic, absurd fear of covid does not rise to the level of allowing discrimination. People who are fully vaccinated that claim to be “afraid” of unvaccinated are not following the science. Science says fully vaccinated people can, do and are spreading covid. Finally,

    Sources: https://www.msn.com/en-us/news/us/cdc-report-shows-vaccinated-people-can-spread-covid-19/ar-AAML2bE https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(21)00648-4/fulltext
    https://www.ibtimes.com/covid-19-herd-immunity-possible-omicron-cases-surge-experts-say-3369737d.

    Kimberly A Zizza says:

    I am self-employed and I had to stop by a court for a court summons today. Security asked me if I was vaccinated. I was caught off guard and answered truthfully, with a no. All they said was thanks counsel and let me in. Everyone is required to wear masks in court which I agree with since it can spread vaccinated or not. but the questioning at the door seems irrelevant since a yes or no can still get you in.

    Michele says:

    Now that scotus has ruled that the dept of labor cannot issue vaccine mandates, how could this impact mandates for civilian/military feds and fed contractors? If it’s found to be unconstitutional for one agency to do it then why not all agencies since they are the ones enforcing Biden’s EO??

    Joseph Ramos says:

    The supreme court ruled against Biden’s mandate and the OSHA part stating that you don’t have to get the vaccine, don’t have to test weekly and wear a mask. My company is enforcing the mandate. What are my legal rights?

    Joseph Ramos says:

    The supreme court ruled against Biden’s mandate and the OSHA part stating that you don’t have to get the vaccine, don’t have to test weekly and wear a mask. My company is enforcing the mandate. What are my legal rights?

    James Sandino says:

    I work for the judiciary in a district within the 9th Circuit. The 9th Circuit mandated vaccines and it traveled down to my district. As an individual, how would I be able to fight against my court regarding further mandates, i.e. booster mandate when there was never a mandate by the Federal Government to the Judiciary?

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