Court Challenges Aside, Employers Should Still Prepare for OSHA’s COVID Vaccine Mandates
Commentary by Aaron Tandy, Partner at Pathman-Lewis
The U.S. Court of Appeals for the Fifth Circuit in Louisiana just days ago temporarily blocked implantation of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring employers with 100 or more employees to institute mandatory vaccination programs or have unvaccinated employees submit to weekly testing. Employers should still prepare for the vaccine mandates.
First previewed by President Joe Biden in September, OSHA’s ETS is part of a concerted effort by the current administration to actively encourage the reopening of workspaces and curb COVID-19 outbreaks by requiring mandatory vaccination of about 84 million workers, many of whom may have already been vaccinated voluntarily, by Jan. 4, 2022. As part of OSHA’s announced ETS, private employers are required to review requests for accommodation by unvaccinated employees under the Americans with Disabilities Act (ADA) or the religious exemption provisions in Title VII.
Biden previously issued an executive order requiring federal employees and employees of federal contractors to be vaccinated by Dec. 8, but the administration delayed the date of compliance to Jan. 4, 2022, to match OSHA’s announced ETS. More stringent rules are already in effect for employees of hospitals and other facilities that receive federal money from Medicare and Medicaid programs.
Unlike Biden’s executive order, under OSHA’s ETS, private sector employees covered by the regulation may choose to remain unvaccinated subject to weekly testing. Those employees who test positive will be required to be removed from the workplace until they test negative for COVID-19. However, the announced ETS does not require employers to provide or pay for tests, including the weekly testing for those opting out of becoming vaccinated. Under current guidance that goes into effect Dec. 5, employers will be required to provide paid time off for employees to receive vaccinations and sick leave for those who test positive for COVID-19.
Lawyers Advising Employers
OSHA’s ETS will require both employers and employees, and their counsel, to address new realities regarding both physical and operational changes required by the lingering effects of COVID-19 in the workplace. Attorneys seeking to assist employers who may be covered by the ETS should begin by first assessing if they are in fact a covered employer, remembering to count part-time employees, employees on long-term leave or furloughs and potentially joint employees. Next, employers should assess how much of the employer’s workforce is vaccinated, remembering that under Equal Employment Opportunity Commission (EEOC) promulgated COVID-19 guidelines, managers should be trained as to what may and may not be asked of employees with regard to a mandatory vaccination program and how to direct employees to make an accommodation request.
Toward that end, counsel may wish to create a form for allowing employees to seek an accommodation under the ADA or Title VII, including the type of information required or that can be requested and recommend that an employer create a team to handle accommodation requests, remembering that the process for accommodations must be interactive and identify the types of reasonable accommodations that may be available and reasons that certain accommodations may not be available even if they appear to be generic (i.e., allowing continued teleworking or staggered working days).
Moreover, even with a COVID vaccination-related accommodation request, employers are not required to alter the essential functions of the job to provide an accommodation (i.e., not required to shift certain tasks to other employees to provide accommodation); create new jobs or displacing a current employee; alter the business process to provide an accommodation; and not required to make an accommodation that would be prohibitively expensive or detrimental to the business operations.
Further, the disability must be specific and limit major life activities. The fact that the impairment may “merely affect major life activities” is not sufficient. Recently, in the case of Norman v. NYU Langone Health System, 492 F. Supp.3d 154 (S.D.N.Y. 2020), the court concluded that the plaintiff did not suffer a substantial limitation of a major life activity in relation to a flu vaccine even though she experienced shortness of breath and anxiety/stress. The court reasoned that the plaintiff did not demonstrate the type of severe intensified reaction that would count for a disability under the ADA.
The current OSHA ETS in keeping with prior EEOC guidance indicates that employers are permitted to ask employees about their vaccination status and require proof of vaccination but must take steps to keep such information confidential and avoid accidental dissemination of status information both of vaccinated and unvaccinated employees. Moreover, prior OSHA guidance still requires employers to take steps to protect vaccinated and unvaccinated employees from being exposed to COVID-19 in the workplace. Counsel should make sure to go over with their clients prior OSHA guidance regarding cleaning and sanitation programs and other COVID-19 safety regulations.
Court Battles Brewing
Frustration over the lack of progress in obtaining a significant pool of vaccinated workers to avoid disruption in business services and supply chain mobility had previously led several employers to adopt mandatory vaccination plans in anticipation of the OSHA regulation recently announced. It has set up a legal confrontation between various state governors hostile to vaccine mandates, who have promised retribution and fines for employers who implement vaccine mandates and possible challenges to the ETS, and some states, which have introduced legislation that would prohibit employers within the states from adopting vaccine mandates as a condition of employment or enacting policies treating vaccinated and unvaccinated employees differently.
While the outcome of any litigation cannot be predicted, challenges made to private vaccine mandates have not faired well in federal court. For example, earlier this year in Bridges v. Houston Methodist Hospital, 2021 WL 2399994 (S.D. Tex. June 12, 2021), a group of employees at a hospital challenged their termination for failure to get vaccinated, but the lawsuit was dismissed because the court indicated that Texas employment law did not prohibit the termination for failure to abide by vaccination policy.
Aaron Tandy heads Pathman Schermer Tandy, LLP’ employment law practice, helping employers and employees navigate complex employment issues. He can be reached at firstname.lastname@example.org.