On Sept. 9, President Joe Biden announced his Path Out of the Pandemic: Covid-19 Action Plan, with a goal of getting more people fully vaccinated. The headline news from the action plan was that all employers with 100 or more employees must require their workforce to be fully vaccinated or produce a negative Covid test result on at least a weekly basis.
The Department of Labor’s Occupational Safety and Health Administration is tasked with developing the rule, as well as a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. Neither rule is expected to be published for several weeks.
Understandably, many employers are already thinking about how to manage the tricky issue of requiring employees to be vaccinated. Mandatory rules are difficult to enforce even when this doesn’t carry a risk of discriminating against those with valid objections.
While employers await OSHA’s rules, Covid-19 guidance issued by other government departments may provide some pointers for managing a mandatory vaccination program.
Recommendations: Safer Federal Workforce Task Force
Guidance issued by the Safer Federal Workforce Task Force on Sept. 24, in response to the requirement for employees of federal contractors and subcontractors to be vaccinated, Covid-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors provides some insight on the practicalities of mandating vaccines.
Proof of vaccination status. The task force’s guidance indicates the following evidence will be sufficient: a copy of the record of immunization from a healthcare provider or pharmacy, a copy of the Covid-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering vaccine. A recent negative antibody test is not sufficient.
Protocols for those not fully vaccinated. The task force’s guidance suggests that individuals who are not fully vaccinated must wear a mask indoors and in certain crowded outdoor settings or during close-contact activities, regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times including in offices, conference rooms, and all other communal and workspaces.
Reasonable accommodations. Employees may seek accommodation in the form of exemption from a mandatory vaccination policy either because of a disability or a sincerely held religious belief under the Americans with Disabilities Act and Title VII of the Civil Rights Act.
The EEOC’s guidance says employers should consider the request for accommodation (in the form of not requiring that employee to be vaccinated) and determine whether the unvaccinated employee would “pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” A reasonable accommodation may be allowing the employee to work remotely or otherwise in isolation from others. Additional accommodations that may be permitted, subject to OSHA’s pending rule, may include changes to the work environment, temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment.
While employers may want to draft policies and procedures in readiness for the rule to come into force, it would be worth waiting to see the final rule from OSHA. The best factual defense to any potential employee or class-action lawsuit is to develop appropriate procedures to address the risk of Covid-19 in the workplace, paying attention to applicable guidance from OSHA, the Centers for Disease Control and Prevention and state or local officials.
Such preventative steps may serve as evidence that an employer satisfied any alleged duty of reasonable care and may also help discourage lawsuits seeking prospective relief. Moreover, alleged failures to address risks related to Covid-19 can subject employers to scrutiny by regulators. Employers should keep a close eye on any mechanisms and penalties that OSHA’s pending rule provides for enforcing the mandatory vaccine policy.