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.)

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

2 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?

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