Tag: COVID-19

November 10, 2021

OSHA Vaccine Mandate Targets Majority of U.S. Workforce

On November 5, 2021, the U.S. Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) regarding COVID-19. The ETS establishes new requirements for covered employers with 100 or more employees. In total, OSHA estimates these rules will affect over 264,000 employers and 84 million employees. The ETS gives employers the option to require all employees to become vaccinated against COVID-19 or implement weekly testing and mask-wearing requirements for all unvaccinated workers. The ETS is already subject to litigation that could block the OSHA vaccine mandate from taking effect. But, if not, employers must begin complying with its provisions by December 6, 2021.

Coverage – Who is subject to the ETS?

The OSHA vaccine mandate ETS doesn’t apply universally. And, unfortunately, who is or isn’t covered isn’t always a simple question.

Covered Employers

100 Employee Threshold

The employing entity must have at least 100 employees for the ETS to apply. But not all organizations with 100 or more employees are covered.

The 100 employee threshold is across all of the employer’s operations. There doesn’t have to be any single workplace with that many workers. Even separate legal entities can be treated as a single employer for this purpose if they handle safety matters collectively.

OSHA has identified special parameters when a staffing agency is involved. Only the staffing agency, and not the site operator, must count the workers it supplies to a worksite. However, if the staffing agency has 100 or more employees, the site operator would still have obligations as a joint employer to ensure those workers comply with the ETS.

In counting employees, part-time employees count equally as full-time employees. There is no calculation of full-time equivalents (FTEs). However, genuine independent contractors aren’t counted.

If an employer has 100 or more employees on any day during the effective period of the ETS, then the employer remains subject to the ETS as long as it remains in effect. A subsequent decline in headcount does not remove the employer from coverage.

Public Employees

The Occupational Safety and Health Act only applies directly to private-sector workplaces. However, many states have agreements to apply OSHA’s requirements or alternate more stringent standards on state and local governmental entities. Public employees in states with such plans in place would generally be expected to be subject to the ETS, provided their employing governmental entity has 100 or more employees and isn’t subject to another carveout. However, some states are likely to contest OSHA’s vaccine mandate, making the ultimate impact on public workers uncertain.

Federal Contractors

President Biden’s Executive Order 14042 subjects many federal contractors and subcontractors to alternate COVID-19 vaccine requirements. Workplaces subject to that more stringent vaccine mandate are not subject to the OSHA ETS. However, employers may be subject to both the federal contractor rules and the OSHA rules at separate workplaces or for different groups of employees.

Note that the vaccine mandate for federal contractors was previously set to take effect beginning December 8, 2021. However, as a slight concession for consistency, the White House has changed that date to January 4, 2022. That is the deadline for employees to be vaccinated under the OSHA ETS.

Healthcare Settings

On June 21, 2021, OSHA implemented an ETS addressing COVID-19 in certain healthcare settings. It’s not easy to describe which healthcare workplaces are subject to those rules. OSHA has prepared a complicated flowchart to help reach that determination.

Notably, the healthcare ETS does not require vaccination. Nonetheless, workplaces subject to the earlier, and still operable, healthcare ETS, such as acute care hospitals, are excluded from coverage under the November OSHA vaccine mandate ETS. But, healthcare providers with workplaces not covered by the healthcare ETS may be subject to the OSHA vaccine mandate for employees in those settings, if otherwise applicable based on employee count and other possible exclusions.

Covered Employees

Unless an express exception applies, the OSHA ETS applies to all employees of covered employers.

The OSHA requirements do not apply to employees:

who do not report to a workplace where other individuals, such as coworkers or customers, are present;
while working from home; or
who work exclusively outdoors.

Some exceptions are also permitted as accommodations to employees based on medical conditions or religious beliefs.

Vaccine Mandate

The OSHA ETS prefers that covered employers implement a mandatory vaccination policy for all covered employees. The deadline for employees to complete their vaccination sequence (one or two shots depending on the vaccine) is December 4, 2021. After that date, all new employees must become vaccinated “as soon as practicable.”

Employers who choose to require full vaccination of all employees may still make exceptions for employees:

for whom a vaccine is medically contraindicated;
for whom medical necessity requires a delay in vaccination; or
who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirements.

OSHA’s allowance of these exceptions does not necessarily mean that all such employees must be allowed to work without being vaccinated. The ETS only provides an available exception from the mandate in these instances. Employers must comply with any applicable legal obligations, such as making disability and religious accommodations. But there may be situations where an exception from the mandate would not be a reasonable accommodation or would pose an undue hardship.

Test/Mask Option

As an available alternative to a complete vaccination mandate, employers may enact a policy of allowing unvaccinated employees to continue working by testing for COVID-19 weekly and wearing face coverings while working.

Testing

Covered employees who report at least once every 7 days to a workplace where other people are present must test weekly. In this scenario, each employee must provide documentation of the most recent COVID-19 test result to their employer by the 7th day following the date they last provided a test result.

Whenever an employee goes at least 7 days without reporting to a workplace where other people are present, the employee must be tested within 7 days before returning to the workplace and provide the test results upon return to work.

The OSHA ETS does not require employers to pay for COVID-19 testing. However, it acknowledges and permits that other laws or contractual obligations (such as union collective bargaining agreements) may impose such a requirement.

Whether vaccinated or not, any covered employee who tests positive must inform their employer and remain out of the workplace during any applicable isolation periods.

Face Coverings

Covered employees who are not fully vaccinated must wear a face covering at work whenever they are indoors or in a vehicle with another person.

There are several limited exceptions to the mask requirement:

When alone in a room with floor-to-ceiling walls and a closed door.
For a limited time while eating or drinking at the workplace or for identification purposes in compliance with safety and security requirements.
When wearing a respirator or facemask (technically different from a “face covering” for OSHA purposes).
Where the employer can show that the use of face coverings is infeasible or creates a greater hazard.

Employers must ensure that face coverings fully cover employees’ mouths and noses and are replaced when wet, soiled, or damaged.

OSHA does not require employers to pay for or provide face coverings. But it acknowledges and permits that employers may have independent legal obligations to do so.

Employee Vaccination Status

All covered employers must determine and keep a readily available roster of the COVID-19 vaccination status of all covered employees, regardless of whether they impose a strict vaccine mandate or permit the testing/masking option.

Employers must obtain acceptable proof of full or partial vaccination status of each covered employee.

Where the employee cannot provide a vaccination card or other official documentation, a signed statement from the employee may be accepted. The attestation must specifically include the following language:

I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.

OSHA warns that employers who knowingly permit false documentation of vaccination status may also be subject to severe penalties.

Paid Leave

The OSHA ETS requires that all covered employers provide “a reasonable amount of time,” of up to 4 hours of paid leave, for employees to obtain each vaccination dose.

Moreover, employers must also provide “reasonable time and paid sick leave” for employees to recover from side effects experienced after a vaccination dose. OSHA comments that a reasonable time is up to two days in most cases. Employers may require employees to use available paid sick or PTO time for this purpose, if available. But employees who do not currently have such time available must still be granted time off with pay.

These requirements only cover the primary one or two-dose regimens, not any potential booster shots.

Written Policies

Whether employers impose a strict vaccine mandate or a testing option, they must prepare a written policy addressing all of the OSHA COVID-19 requirements.

Specifically, covered employers must inform all employees “in a language and at a literacy level the employee understands” about:

The requirements of the OSHA ETS and any employer policies and procedures established to implement it.
COVID-19 vaccine efficacy, safety, and benefits of being vaccinated, by providing the document “Key Things to Know About COVID-19 Vaccines”.
OSHA rules that prohibit employers from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness and for exercising rights under the OSHA COVID-19 ETS.
Federal laws providing for criminal penalties associated with knowingly supplying false statements or documentation.

OSHA has provided sample policies on its website:

OSHA’s samples may provide a helpful starting point, but most employers will need to revise them carefully to match the relevant circumstances in their workplaces. And some employers may decide to adopt different policies for different facilities or categories of employees, which is generally an available option under the ETS.

Reporting Requirements

Employers must also report work-related COVID-19 in-patient hospitalizations and fatalities to OSHA. Hospitalizations must be reported with 24 hours of the employer learning of them. Fatalities must be reported within 8 hours.

Penalties

Covered employers could face penalties of up to $13,653 per violation of the OSHA ETS. Penalties for repeated and willful violations may reach up to $136,532 for each offense. Proposed legislation could increase those penalties by up to 10 times their current amounts.

Legal Challenges

As soon as President Biden announced that he was asking OSHA to work on a vaccine mandate, legal experts began questioning the agency’s authority to do so. Many interested parties have objected to this regulatory action, including numerous businesses and some states. The day after the OSHA ETS was published in the federal register, the U.S. Court of Appeals for the 5th Circuit issued a ruling preventing the ETS from taking effect pending further action by the court. The 5th Circuit found “cause to believe there are grave statutory and constitutional issues” with the OSHA vaccine mandate.

The 5th Circuit case is not the only one expected to be processed in an expedited manner given the ETS’s initial December 6th compliance date. Yet, at this point, it is unknown exactly when any final decision, potentially from the U.S. Supreme Court, will be rendered.

For now, covered employers must prepare for the possibility of having to comply on short notice. But there is also a reasonable chance that some or all of the OSHA ETS’s provisions will never become applicable.

For more analysis of the OSHA vaccine mandate ETS, register for our upcoming webinar.

October 27, 2021

Accommodating Religious Objections to COVID-19 Vaccine Mandates

On October 25, 2021, the U.S. Equal Employment Opportunity Commission updated its COVID-19 technical guidance to address employees’ religious objections to vaccine mandates. Title VII of the Civil Rights Act of 1964 protects workers from religious discrimination. The law also grants employees the right to seek accommodations of their sincerely held religious beliefs, practices, and observances. Given the proliferation of legally mandated and voluntarily imposed workplace vaccine mandates, many employees have sought exemption from the requirement on religious grounds. While acknowledging that employers generally must consider employee requests for religious accommodations, the EEOC emphasizes that employees are not automatically entitled to an exemption based on a religion-based objection.

Click for more on “Accommodating Religious Beliefs in the Workplace”

Employee Requests

The new EEOC guidance confirms that an employee must ask for a religious exemption to the vaccine mandate before the employer must consider offering one. Employees do not have to use any “magic words,” such as “religious accommodation” or “Title VII,” but must affirmatively express a conflict between their religious beliefs and being vaccinated for COVID-19.

Support for Religious Objections

The EEOC confirms its historical view that employers should generally assume an employee’s asserted religious belief is valid. But, with a sufficient “objective basis,” an employer may question the religious nature or sincerity of an asserted belief. In that case, the employer may engage in a limited factual inquiry and seek additional supporting information.

Religious Nature

Religious beliefs may be distinguished from purely personal, political, economic, or social views. However, Title VII protects even nontraditional religious beliefs. If there is uncertainty as to why the professed belief is religious in nature, the employee may be asked to explain.

Sincerity

Usually, it is difficult to challenge the sincerity of an employee’s professed religious belief. However, evidence undermining an employee’s credibility can be evaluated. For example, the EEOC notes the following potentially relevant factors:

prior acts by the employee inconsistent with the professed belief;
whether the accommodation sought is a particularly desirable benefit that is likely to be sought for non-religious reasons;
timing of the request (e.g., following an earlier request by the employee for the same benefit for non-religious reasons); and
other information suggesting the accommodation is not sought for religious reasons.

The EEOC cautions that an individual’s sincerely held religious beliefs can change over time. And “[a]n employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.”

Undue Hardship

As with disability accommodations, employers need not grant religious accommodations that would pose an undue hardship. Nonetheless, employers are advised to “thoroughly consider all possible reasonable accommodations, including telework and reassignment.” What constitutes an undue hardship will vary between workplaces and potentially even between positions within the same organization.

The EEOC asserts that “[a]n employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information.” The following factors may be relevant in weighing an exception to a COVID-19 vaccination requirement:

nature of work location (indoors or outside)
type of work setting (solitary or group)
degree of interpersonal interaction
number of employees seeking a similar accommodation

Individualized Analysis

Employers should evaluate each religious accommodation request on its own merits. Thus, some employees with religious objections may be excused from the vaccine mandate while others are not.

In each case, an employer may consider:

type of workplace
nature of the employee’s duties
number of employees who are fully vaccinated
how many employees and nonemployees enter the workplace
the number of employees who would need a particular accommodation

An employee’s personal religious beliefs may affect what accommodations are possible for them compared to others.

Alternative Accommodations

Employers are not limited by the specific accommodation an employee seeks. They may consider any reasonable accommodation that would resolve the conflict between the vaccination requirement and the employee’s sincerely held belief without causing an undue hardship. If more than one accommodation meets that standard, then the employer should consider the employee’s preferred accommodation. But the employer retains the right to choose the accommodation granted even if different than the employee’s preference.

The EEOC suggests, “If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.”

Reconsidering Accommodations

The EEOC notes that the accommodation process is a “continuing obligation that takes into account changing circumstances.” Both employee religious beliefs and workplace conditions could change.

Of particular note, the technical guidance confirms that “an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.”

The EEOC suggests that, as a best practice, employers should discuss any changes (and potential alternatives) with the affected employee before revoking a previously granted accommodation.

Uncertainty Remains Unavoidable

This recent EEOC guidance offers some clarification for employers facing the difficult challenge of responding to employees’ religious objections to vaccine mandates. Unfortunately, however, the emphasis on a case-by-case analysis leaves each situation open to interpretation. As a result, employees who don’t get the accommodations they seek may pursue religious discrimination claims under Title VII or similar state or local laws. A wave of such litigation is likely, no matter how careful employers are in evaluating these requests. Thus, you should review these requests with an experienced employment lawyer before taking final action that may upset an employee.

Follow Horton Law on LinkedIn for the latest news and updates on COVID-19 compliance, vaccine mandates, and other topics of interest to New York employers.

October 27, 2021

Fall 2021 New York Employment Law Update (Webinar Recap)

On October 26, 2021, I presented a complimentary webinar entitled “Fall 2021 New York Employment Law Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

Minimum Wage Increases
Employee Marijuana FAQs
Workplace Safety Committees
Vaccine Mandates
and More!

We’re still eagerly awaiting guidance on important legal changes that will impact many New York employers. But we’ve also had recent developments regarding the minimum wage and employee marijuana use.

This webinar addresses the latest on the anticipated OSHA vaccine mandate and new EEOC guidance on accommodations for employees seeking exclusions based on their religious beliefs. A vaccine mandate is already in place for some employers, including federal contractors.

With a November 1, 2021 effective date, we also discuss what the new workplace safety committee requirements may mean for covered employers.

Get the latest on these topics and more.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Fall 2021 New York Employment Law Update”

COVID-19 has added to an already complex compliance area. Both the state and federal governments continue to implement new requirements. And more are on the way. This webinar will give you an overview on what you need to know now and what you should be watching for in the near future.

Don’t Miss Our Future Webinars!

Click here to sign up for the Horton Law email newsletter to be among the first to know when registration is open for upcoming programs! And follow us on LinkedIn for even more frequent updates on important employment law issues.