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EMPLOYMENT LAW UPDATE

Updates and more updates about vaccine mandates

By Mike O’Brien

Given the flurry of recent news reports surrounding COVID vaccine requirements, an update about mandates seems, well, mandatory. Like our readers, the authors of these updates look forward to a happier time, when the most pressing issues in HR law are not all somehow pandemic-related. In the meantime, we will do our best to keep you up to date.

OSHA sends White House its vaccine mandate rule for review

On Oct. 12, the Occupational Safety and Health Administration (OSHA) sent the White House its highly-anticipated rule implementing the mandatory vaccine requirements President Biden announced in September for businesses with 100 or more employees. The exact content of the rule (an Emergency Temporary Standard, or ETS) is not publicly known, but the basic parameters would require covered employers to mandate COVID vaccines, and pay workers for time off needed to be vaccinated or to recover from vaccine side effects. Workers who refuse vaccination would be subject to weekly COVID testing. OSHA’s proposed rule is expected to be reviewed by the White House in an expedited process.

Texas governor issues ban on vaccine mandates.

A showdown looms in Texas over Gov.  Greg Abbott’s recent executive order banning all organizations in the state from enforcing vaccine mandates. Major employers including American Airlines and Southwest Airlines have announced their intent to defy Abbott’s order and instead will comply with the conflicting federal requirements of the upcoming OSHA ETS. An association of businesses that includes Exxon Mobil, Chevron, and JP Morgan has also spoken out against Abbott’s order, arguing that businesses should be able to require vaccinations for their workers.

The Texas order will arguably be superseded by the federal requirements, but some issues are unclear. For example, the anticipated OSHA ETS will not apply to employers with fewer than 100 workers, so it is possible that the Texas order would be enforceable with respect to such businesses. Litigation challenging both the OSHA rule and the Texas order seems all but certain. Employers in Texas will have to tread carefully in the meantime regarding vaccine mandates.

Sincerely, no vaccine?

With an unprecedented number of requests for religious accommodation to avoid mandatory COVID vaccines at work, many employers are faced with the tricky issue of weighing whether anti-vaccination religious beliefs are “sincerely held” under Title VII. Although no major religion has taken a position against the COVID vaccines, and religious leaders from Pope Francis to The Church of Jesus Christ of Latter-day Saints President Russell M. Nelson have spoken out in support of them, Title VII requires a more nuanced analysis. The Equal Employment Opportunity Commission (EEOC) counsels that “the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that the employee’s request for religious accommodation is [sincere].” However, the EEOC notes, if “an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.” EEOC COVID-19 Guidance Document (See K.12 for the relevant section of the document.)

One employer recently did just that, in a somewhat unique way. Conway Regional Health System (Conway) announced a COVID vaccination requirement for its workforce in mid-September, and received a number of requests for a religious accommodation that far exceeded the number of such requests related to past vaccine mandates (for example, for the flu vaccine). A majority of the requests for accommodation pointed to the fact that fetal cell lines were used at some point in the development of the COVID vaccines (although the vaccines themselves do not contain fetal cells). Conway asked the workers seeking exemptions to sign a form attesting that their “sincerely held religious belief is consistent and true,” such that they do not and will not use any medication that was developed using fetal cell lines at any point. Conway listed the following common medications as examples: Tylenol, Motrin, Ibuprofen, Acetaminophen, Benadryl, Claritin, Pepto Bismol, Tums, Maalox, Sudafed, Zoloft, Aspirin, Ex-Lax, Preparation H, Prilosec, Lipitor, and others. Conway asserted that it was not contesting the validity of a religious belief against the use of fetal cell lines, but rather sought to verify the sincerity of such belief in the workers seeking exemption.

Where an employee’s religious belief is sincerely held (and remember the EEOC advises employers to generally assume it is), the employer must consider whether a religious accommodation can be provided, or whether doing so would impose an undue hardship. On this point, the EEOC notes: “Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.” (See link above.)

Employers with questions about how to respond to requests for religious accommodation may wish to consult with experienced employment law counsel.

EEOC updates COVID-19 vaccine guideance on issues related to ADA, Title VII, and GINA

On Oct. 13, 2021, the EEOC updated its COVID guidance relating to, what else, vaccine mandates at work. The EEOC answered a number of questions (or updated its previous answers), related to the following:

  • Whether federal EEO laws allow an employer to require COVID vaccines for all employees physically entering the workplace. (Short answer: Yes, subject to reasonable accommodation requirements and other EEO considerations such as disparate impact.)
  • How employers can lawfully encourage employees and their families to be vaccinated against COVID. (Short answer: Employers may provide information about the vaccines and benefits of vaccination, address common questions and concerns, and provide incentives under certain circumstances. They may also work with public health authorities, medical providers, or pharmacies to make vaccinations available in the workplace.)
  • The confidentiality under the ADA of an employee’s COVID vaccination status. (This information, like all medical information, must be treated confidentially and stored separately from personnel files.)
  • Whether an employer can lawfully inquire or seek documentation to confirm vaccination. (Short answer: Yes. The EEOC notes that asking whether a worker received a vaccination is not likely to elicit disclosure of a disability.)
  • What an employer should do when an employee refuses vaccination due to pregnancy. (Short answer: Make sure that the employee is not being treated less favorably than other employees similar in their ability or inability to work. This may mean the pregnant worker is entitled to accommodations, if other comparable employees are provided such job modifications.)
  • Whether requiring documentation that a worker received a COVID vaccine from a provider not affiliated with the employer implicates GINA. (Short answer: No. Such a requirement is not using, acquiring, or disclosing genetic information.)
  • Whether the ADA limits the value of permissible employer incentives for COVID vaccination from a provider notaffiliated with the employer. (Short answer: No. However, “if an employer offers an incentive to employees to receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.” The reasoning here is that vaccinations require the recipient to answer certain disability-related screening questions, and a very large incentive could pressure employees into disclosing protected medical information to the employer or its agent administering the vaccine.)

The complete EEOC Guidance document is available here: EEOC COVID-19 Guidance Document.

OSHA cites employher for exposing workers to COVID-19

OSHA announced that it recently cited an auto insurance company for exposing workers to COVID at a location where an employee died of the virus. The company was found to have “completely ignored coronavirus safety requirements and allowed others displaying symptoms to work at the same Denver location where an employee died with COVID-19.” An investigation found that the employer did not safely distance its workers, did not enact a health and safety plan, and allowed symptomatic workers to stay at work. The proposed penalty is $23,406. OSHA Press Release. The employer may contest OSHA’s findings within 15 days of the citation.
As of Oct. 8, 2021, OSHA has assessed initial penalties totaling $4,034,288 against employers for COVID-related violations.
OSHA Inspections with COVID Violations

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