AlphaStaff’s COVID-19 Vaccine FAQ

Dec 20, 2021

Original Post: September 29, 2021

 

AlphaStaff’s COVID-19 Vaccine FAQ contains commonly asked questions to help employers understand current rules, regulations, and guidance related to COVID-19 vaccination and testing policies. Please read our list of frequently asked questions and Contact Us if you have any questions.

 

1. Can an employer mandate vaccination in the workplace?

The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that an employer can mandate that employees be vaccinated; however, this requirement is “subject to reasonable accommodation provisions of Title VII and the Americans with Disabilities Act (ADA) and other EEO considerations.”  As such, reasonable accommodations must be made for employees who cannot obtain the vaccine because of a medical condition or a sincerely held religious belief so long as the accommodation does not create an undue hardship for the employer.

If an employee requests an accommodation under either of these circumstances, the employer must initiate an individualized, interactive process to determine if a reasonable accommodation can be made without any undue hardship to the employer.

 

2. How does President Biden’s Path Out of the Pandemic impact employers? (Updated 12/20/2021)

On September 9, 2021, President Biden issued a COVID-19 action plan referred to as The Path Out of the Pandemic (Plan). The Plan includes many components, including directives to certain federal agencies.

One important element impacting private employers is the President’s directive to the Occupational Safety and Health Administration (OSHA) to draft an Emergency Temporary Standard (ETS) requiring all private employers with 100 or more employees to ensure their workforce is vaccinated or require unvaccinated employees to obtain weekly COVID-19 testing. On November 5, 2021, OSHA released the ETS. Shortly thereafter, the ETS was put on hold pending review by the US Court of Appeals for the Sixth Circuit (called a “stay”), however on December 17, 2021, the Sixth Circuit lifted the stay allowing OSHA to proceed with enforcement activity while the ETS is under legal review. The ETS requirements are summarized in Question 3.

Another component of the Plan is an Executive Order directing the Safer Federal Workforce Task Force (Taskforce) to issue “workplace safety” guidance, including a vaccine mandate for federal employees and federal contractors. On August 10, 2021, the federal government enacted a policy requiring contractors onsite at federal facilities to be vaccinated or tested regularly. On September 27, 2021, the Taskforce issued guidance extending the scope of the vaccine mandate to offsite contractors. On December 8, 2021, a federal court in Georgia granted a nationwide injunction putting the federal contractor rule on hold for now. 

If lifted, employees of covered federal contractors have until January 18, 2022, to be fully vaccinated, absent from a disability or religious accommodation. The Taskforce’s guidance also requires masks and physical distancing, and the contractor must designate one or more COVID-19 workplace safety coordinator(s). For more information about the Taskforce’s guidance related to federal contractors, please review this article published by our partners at Fisher Phillips. Since the initial publication of this resource, the Taskforce has updated its FAQs with additional guidelines as federal contractors gear up for compliance with the January 18, 2022 deadline.

 

3. What must employers do to comply with OSHA’s ETS? (Updated 12/20/2021)

The ETS, released on November 5, 2021, imposes a mandatory vaccination requirement for all employers with 100 or more employees, absent a disability or religious accommodation.  Enforcement of the ETS is currently blocked by court order, but employers that meet the threshold should begin preparing for enforcement.  A brief summary of the ETS is provided below, but we encourage you to review more detailed information published by our partners at Fisher Phillips.

ETS Summary

What

Generally, OSHA’s ETS requires private employers with more than 100 employees to either mandate covered employees to be fully vaccinated against COVID-19, or require covered employees who are not fully vaccinated to test for COVID-19 at least every seven (7) days and wear a face covering at all times in the workplace (except in very limited situations).

As part of OSHA’s ETS, employers must also:

  • Establish a written policy on vaccines, testing, face coverings, OSHA’s prohibition on retaliation, OSHA’s whistleblower protections, and the criminal penalties associated with knowingly providing false statements and documentation;
  • Provide employees with the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines;”
  • Provide paid time off to employees to obtain the vaccine and reasonable time off to recover from vaccine side effects;
  • Maintain a roster of employees and their vaccination statuses; and
  • Comply with certain notice requirements when there is a positive COVID-19 case in the workplace and report work-related COVID-19 fatalities and hospitalizations.

Once effective, employers that fail to comply may be subject to a penalty of up to $13,653 per violation.

Who

All private employers with 100 or more employees must comply with the ETS unless they are (a) federal contractors covered by the federal contractor vaccine mandate; (b) healthcare employers covered under the healthcare ETS; or (c) participating Medicare or Medicaid program facilities covered under separate emergency regulations.

The vaccination, testing, and masking requirements do not apply to employees who do not report to a workplace where other individuals are present, who work from home, or who work exclusively outdoors.

Where

In 29 states, referred to as federal OSHA jurisdictions, if the ETS is ultimately upheld, it will become effective immediately.  However, the remaining 21 states are governed by state OSHA rules and will have additional time to either adopt the ETS or draft their own standard that is “at least as effective” as the established Federal standard.

  • Federal OSHA Jurisdictions: Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.
  • State OSHA Jurisdictions: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.

When

As written, enforcement of the ETS was set to begin December 5, 2021, for all portions of the ETS other than the testing and vaccination compliance date, which was set to begin January 4, 2022. However, shortly after release, lawsuits were filed in the Fifth, Sixth, Seventh, Eighth and Eleventh Circuit Courts of Appeal challenging OSHA’s authority to adopt the ETS.  The Sixth Circuit Court of Appeals (usually covering disputes arising in Ohio, Michigan, Tennessee and Kentucky) has been selected to decide the fate of the ETS.  

On December 17, 2021, the Sixth Circuit lifted the stay, paving the way for OSHA to begin enforcement activity while the litigation works its way through the courts. OSHA has indicated employers have until January 10, 2022 to come into compliance with the ETS, except for the testing requirements for unvaccinated employees which will be enforced beginning February 9, 2022. 

If the ETS survives the legal challenge, it can remain in place for up to six (6) months. After that time, OSHA will be required to go through the normal rulemaking process and adopt a permanent rule.

 

4. What if the state governor issues an order banning private employers from “compelling employees” to get vaccinated? (Updated 12/20/2021)

On October 11, 2021, Governor Gregg Abbott of Texas issued an executive order prohibiting employers from compelling employees to receive the COVID-19 vaccination. More states have adopted similar prohibitions, including Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Utah and West Virginia. This list continues to evolve, and we encourage you to check out Littler Mendelson’s Vaccination Mandate Tracker in the resources section below for the most updated information.

OSHA’s ETS includes language that preempts any state or local regulation on this issue and expressly invalidates existing bans on vaccine requirements. In light of the Sixth Circuit’s decision to lift the stay and give OSHA the green light to being enforcement activity (see Question #3), if you operate in a state that is subject to the federal ETS, it is best to begin taking action to get into compliance as the federal regulation will trump any state or local vaccine ban.

 

5. Are healthcare providers treated differently regarding vaccine mandates? (Updated 12/20/2021)

President Biden stated that the Plan will impact certain healthcare providers. Specifically, Medicare- and Medicaid-certified facilities will be required to institute a vaccine mandate as a condition for participating in those programs.  The Centers for Medicare & Medicaid Services (CMS) has published an FAQ and rules requiring employees of healthcare facilities participating in Medicare and Medicaid to be fully vaccinated by January 4, 2022.  The requirements are summarized in this article published by Fisher Phillips.

There have been several lawsuits filed to block enforcement of the CMS vaccine mandate. Through a series of separate decisions, the federal courts have created a patchwork of compliance considerations for employers. As of today:

CMS Mandate Enforceable

California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, Wisconsin
CMS Mandate Unenforceable

Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Louisiana, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming

Additionally, earlier this year, OSHA issued an ETS related to healthcare employers. The ETS requires, among other things, that healthcare employers provide paid time off for employees to get vaccinated and recover from adverse side effects of the vaccine and to develop and implement a COVID-19 plan for their workplaces. Please review OSHA’s fact sheet, FAQ, and template plan, and check out all of the OSHA ETS guidance at https://www.osha.gov/coronavirus/ets.

 

6. What potential risks should an employer consider if they decide to voluntarily implement a mandatory vaccination policy? (Updated 11/10/2021)

There are multiple ways an employer can implement a mandatory vaccination policy. Employers may choose to offer onsite vaccination and testing; they may take a “hard” approach requiring everyone to be vaccinated absent a legally protected reason; or they may offer a “soft” approach combining vaccination with testing requirements. Each comes with its own set of risks and obligations. If you decide to administer vaccines onsite, you may trigger requirements under the ADA, Health Insurance Portability and Accountability Act (HIPAA), and the Genetic Information Nondisclosure Act (GINA).

On the other hand, requiring vaccination and proof thereof is not itself unlawful but may trigger accommodation obligations under federal and state anti-discrimination laws. For example, a claim of discrimination could arise under a mandatory vaccination policy because individuals may be negatively impacted based on barriers to accessing the vaccination. While the needs of every workplace are different, we have included templates in the resources section below that can be modified to help you develop policies adapted to your business.

Employers must keep in mind any state vaccination requirements and limitations in designing a mandatory vaccination program. Please refer to Question #4 for the list of states that limit an employer’s ability to adopt a mandatory vaccination policy.

If you have any further questions, please reach out to your HR Account Manager for guidance.

7. If an employee states that they have COVID-19 antibodies, should they still be required to get vaccinated?

The U.S. Centers for Disease Control and Prevention (CDC) advised that the presence of antibodies when a person has not been vaccinated is evidence that they were previously infected with COVID-19 and may have developed a level of protection against the virus.  However, according to the CDC, individuals who recovered from COVID-19 should still get the vaccine as the duration and extent of protection is uncertain.  Absent a state law to the contrary, employers can require employees with COVID-19 antibodies to get vaccinated.

 

8. For those who have a medical or religious exemption, what are other options to a mandatory vaccination policy?

Ultimately, what qualifies as a reasonable accommodation will rely on various factors and must be analyzed on a case-by-case basis. Once the need for reasonable accommodations is established, examples of accommodations the EEOC has listed include providing masks, gloves, “erecting a barrier that provides separation between an employee with a disability and coworkers/the public,” or other social and physical distancing measures. However, accommodations can go as far as changing job functions, decreasing coworker interaction by changing an employee’s work schedule, allowing the employee to work remotely, or in some instances, reassigning the employee. Legal experts are advising that the pandemic has drastically changed the accommodation landscape—things that were once routinely considered “undue burdens” for employers (teleworking, for example) may no longer be deemed as such. The appropriate accommodation will depend on a fact-specific inquiry the employer engages in with the employee.

In the resources section below, we provide you with a template accommodation procedure form published by our partners at Fisher Phillips.

 

9. What are the considerations that apply when reviewing a religious accommodation request? (Updated 11/10/2021)

Each inquiry into a request for religious accommodation should be objective and led by the facts of the request. The EEOC has made it clear that employers should begin the review process assuming the request “for religious accommodation is based on a sincerely religious belief.” After reviewing the facts, if the employer can establish an “objective basis” to question the request, the employer may complete a “limited factual inquiry” to can request further information to substantiate the request.

The EEOC also advised that when evaluating the potential undue burden, an employer may consider the cumulative cost of accommodating multiple exemption requests. However, this consideration may not be the basis for denying a claim and only allows an employer to reconsider the accommodation at a later time.

 

10. Is it safer to wait for the FDA to approve a vaccine before mandating it?

As of August 23, 2021, the U.S. Food and Drug Administration (FDA) granted full approval for the Pfizer vaccine.   However, before this approval, the U.S. Department of Justice issued an advisory opinion stating the Food, Drug, and Cosmetic Act “does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an emergency use authorization.” This advisory opinion continues to be relevant because vaccines available through Moderna and Johnson & Johnson are still pending full FDA approval but were granted the Emergency Use Authorization (EUA).  Even if the availability of the Pfizer vaccine becomes limited, an employer can still legally enforce a mandatory vaccination policy.

 

11. Can an employer mandate employees obtain the COVID-19 vaccine booster? (Updated 11/10/2021)

Recently, the FDA amended the EUA for the Pfizer and Moderna vaccines to allow for a single booster dose to be administered at least six months after receiving the second dose for individuals that are:

  • 65 years of age and older; or
  • 18 to 64 years of age and have either a high risk of severe COVID-19 or frequent exposure to the COVID-19 virus.

The FDA also recommends administering a second dose to Johnson & Johnson vaccine recipients at least two months after the initial dose.

While the boosters may be medically advisable for some employees, at this time employers should not require employees to obtain a booster to be considered “fully vaccinated.”   Currently, the CDC continues to define “fully vaccinated” as either: (1) two weeks have passed since the person’s second dose in a two-dose series, such as the Pfizer or Moderna vaccines; or (2) two weeks have passed since the person received a single-dose vaccine, such as Johnson & Johnson’s vaccine.

 

12. Can an employer implement an incentive program for employees that receive the vaccine? (Updated 11/10/2021)

Some employers are choosing to forgo a vaccine mandate and instead offer various incentives for employees to get vaccinated. Those incentives can include paid time off (to get the vaccine, to recover from side-effects of the vaccine, or if the individual contracts COVID-19 after vaccination), cash, and other workplace perks.

In May 2021, the EEOC issued guidance on the application of ADA and GINA wellness rules to vaccine incentive programs.  The agency opined that so long as the employer or employer’s agent is not administering the vaccine, the employer does not have to comply with the value limits imposed under ADA and GINA.

However, on October 4, 2021, the Department of Labor, Treasury, and Health and Human Services (the “Tri-Agencies”) published FAQs clarifying that the HIPAA rules govern the usage of incentives as part of their vaccination policy.  Under HIPAA, group health plans are prohibited from discriminating among similarly situated individuals based on health factors unless it is part of a defined wellness plan.  Wellness plans fall into 1 of 3 categories that vary in complexity. The Tri-Agencies determined that vaccine incentives fall into the category of “activity-only” health-contingent programs and must satisfy five criteria, including a requirement that the incentive or penalty does not exceed 30% of the total cost of the health plan coverage.  A full explanation of the rules can be found here. If an employer implemented a vaccine incentive program prior to the Tri-Agencies’ guidance, it is important to review the established program to ensure continued compliance under HIPAA rules.

Employers must also be mindful of how the implementation of an incentive program may impact individuals who cannot obtain the vaccine because of a disability.  An employer will have to offer these employees an opportunity to earn similar incentives because their failure to obtain the vaccine is legally protected.

 

13. If an employee refuses to get vaccinated, can an employer require evidence of a negative           COVID-19 test weekly? (Updated 11/10/2021)

The ADA allows employers to implement mandatory medical testing when it is “job-related and consistent with business necessity.”  The EEOC has adopted CDC recommendations when applying this standard and concluded that employers are justified, and it is consistent with business necessity, to adopt COVID-19 testing requirements. Additionally, Biden’s Plan and the OSHA ETS, once implemented, will require employers with 100+ employees to mandate weekly testing when an employee is unvaccinated, and many state laws already require this for certain employers. This means that employers may, and in many cases may be required to, periodically screen for COVID-19 before an employee is allowed to enter the workplace physically.

 

14. What if an employee refuses to obtain periodic COVID-19 testing?

An employer may prohibit an employee from physically entering the workplace if they refuse COVID-19 testing, absent a request for a reasonable accommodation that would prompt the interactive process. If the employee is required to be physically present to perform their duties, they can go unpaid for the time they are not reporting to work.

 

15. Who would incur the expense of those tests? (Updated 11/10/2021)

The OSHA ETS provides that employers are not obligated to cover the cost of any required testing pursuant to the emergency standard.  However, the EEOC issued guidance before the current pandemic stating that if an employer is mandating that employees undergo screening by a healthcare provider chosen by the employer, then the employer “must pay all cost associated with the visit.”  Additionally, legal experts are advising employers to pay for the cost of testing in situations where testing is being used as a reasonable religious or medical/disability accommodation.  Please be advised that some state and local laws require that employers cover testing expenses and pay for the employee’s travel time to and from the testing facility.  We have included a chart identifying these state-specific rules in the resources section below.

 

16. What are the acceptable forms of testing that can be implemented? (Updated 11/10/2021)

There are multiple forms of testing related to COVID-19.  Currently, there are tests that detect the presence of antibodies and diagnostic tests, including molecular tests (PCR) and antigen tests (Rapid).  The EEOC has clarified that because antibody tests only reveal past infections, such an inquiry is not “consistent with business necessity” and could potentially disclose genetic information that the employer has no business justification for knowing.  As such, employers should not be requiring antibody testing for their employees and should only require diagnostic tests that screen for the presence of the virus.

When determining the type of diagnostic test that will be utilized, it is important to be sure that the results are accurate and reliable.  The CDC issued guidance on the reliability of the different testing options, and the FDA has published a list of approved antigen tests. While there are many home-testing options that the FDA approved via an EUA, in-home tests, though convenient and cost-effective, come with significant challenges for employers in ensuring the integrity of the testing and test results. Moreover, employers subject to the OSHA ETS will not be able to accept self-administered home test results to comply with the rule’s requirements. The best practice would be for any employee subject to a testing requirement to get tested at a facility.

 

17. Can an employer require employees to wear masks in the office? (Updated 11/10/2021)

The CDC currently suggests that masks be worn indoors by all individuals regardless of vaccination status in places of “high or substantial transmission.”  Furthermore, OSHA has adopted CDC guidance and instructed employers to require masks as a necessary step to minimizing known dangers in the workplace, and has taken it one step further to require masks in the workplace for all unvaccinated employees (absent certain limited exceptions). A workplace that does not have a mask policy may be subject to citation and/or fine by OSHA. If an employee does not have a mask, OSHA has stated that the employer must provide masks at no cost. While employers can and should require masks in the workplace, they must still be prepared to engage in the interactive process if an employee requests a disability or religious accommodation that would exempt them from a mask requirement.

 

18. Can an employer require employees to respond to a mandatory survey about their vaccination status?

The EEOC has stated that asking an employee if they have been vaccinated is not likely to result in the disclosure of a disability and is therefore permissible under the ADA.  Employers are allowed to inquire and require documentation to prove vaccination status.  An employer, however, must limit the scope of the question to vaccination status only. Any inquiry into why an employee has not been vaccinated is prohibited under the ADA. If documentation is collected, it is considered a medical record and must be kept separate from employee personnel files and remain confidential.  State and local laws may add further restrictions to such an inquiry.

 

19. What if an employee provides a fraudulent vaccination card?

There have been reports of instances where individuals are securing and using fraudulent vaccination cards.  The FBI issued an alert on March 30, 2021, making it clear that under Title 18 United States Code, Section 1017, the “unauthorized use of an official government agency’s seal,” like the seal for the CDC present on the COVID-19 vaccination cards, is a crime. To curb such practices, an employer can make employees aware of the possibility of prosecution and disciplinary action for using fraudulent vaccination cards.

 

20. What are data collection and retention requirements?

If proof of vaccination is being requested, employers should request that the employee only submit the necessary information to prove they are vaccinated and nothing more.  When an employer instructs employees to only submit proof of vaccination and the employee submits additional medical information in error (records which likely contain confidential health information the employer would otherwise not be privy to), the employer is not considered to have made an impermissible inquiry under GINA or the ADA.  Vaccination information should be retained in a separate file and should remain confidential and only accessible by select individuals.

 

21. Which states are considering legislation that restricts private businesses from asking employees for proof of vaccination or vaccination status? (Updated 12/20/2021)

As of the date of this FAQ, Montana and Tennessee are the only states that have passed legislation prohibiting private employers from requiring proof of vaccination as a condition of employment. As discussed in Question 4, some states regulate a private employer’s ability to compel employees to receive the vaccine. We have included a chart identifying these state-specific rules in the resources section below.

 

22. When a vaccine is mandated and an employee refuses to comply, how can the employer respond?

An employer may prohibit an employee from entering the workplace if the employee refuses to comply with a lawful vaccine mandate and has not requested, and been approved for, an accommodation due to disability, sincerely held religious belief, or any other accommodation required under state law. Ultimately, employers are allowed to establish the terms and conditions of employment. If the employee chooses not to comply solely for personal reasons, they may not be protected under federal, state, or local law.

Resources