As part of a new COVID-19 action plan, Path Out of the Pandemic, President Biden announced a proposal to “use regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.” This plan would require all private employers with 100 or more employees to ensure all workers are fully vaccinated against COVID-19 or produce a negative test every week. This requirement would be implemented through an Emergency Temporary Standard (ETS) by the Occupational Health and Safety Administration (OSHA). The mandate would affect approximately 80 million workers in the US. 

OSHA submitted the initial text to the White House for approval on October 12, and while some details could change during review, many believe the standard will soon go into effect. Even though the federal mandate is already facing legal challenges, HR and legal experts recommend that employers prepare now for compliance and employee requests for exemptions. In this article, we’ll explore what employers can expect from OSHA on the vaccine mandate, provide tips to review religious and medical exemption and accommodation requests, and strategies to follow when making determinations.  

Employers prepare to comply with vaccine mandates

Earlier this year, many large employers including Tyson Foods and United Airlines announced policies mandating vaccines which led to an increase in employee vaccination rates at those companies. After the federal vaccine mandate initiative was announced, research firm Gartner surveyed HR executives and found that 46% of respondents planned to institute a vaccine mandate where allowed while more than a third said they were unsure how they would proceed. Some employers believe the federal mandate takes a little of the pressure off them to implement their own mandate. Either way, employers will need to be prepared to comply with the OSHA ETS and handle employee accommodation requests. 

How will the Emergency Temporary Standard (ETS) affect businesses?

As of this writing, the final details of the vaccine mandate for businesses with 100 or more employees are still being reviewed. Once the ETS is approved, it can remain in place for six months before it must be replaced by a permanent OSHA standard. This process requires a lengthy review and approval process. 

In the past, federal courts have typically rejected legal challenges to vaccine mandates as long as they aren’t discriminatory. However, the use of an ETS is fairly untested and there is a lack of legal precedent associated with its use. Either way, court cases can take a long time to deliberate and the ETS may likely be in effect before verdicts are reached. That’s why legal experts at JDSupra recommend that employers take the following actions now to prepare for the vaccine mandate ETS: 

• Create a vaccination policy that complies with the federal vaccine mandate. If you don’t comply with the policy, your business could face fines of $14,000 or more.

• Make a plan to collect vaccination information. Create a process to request, collect, and confidentially maintain vaccine cards or other proof of vaccination. Remember this proof must be kept securely and separately from personnel files.

• Build out your testing policy. Your business will need to think through how you’ll manage mandatory weekly testing: Will you test on-site or at a third-party location—or will you allow at-home testing? How will you collect and maintain test results?

• Be prepared for accommodation requests. Your business may face a variety of questions and accommodation requests. Experts recommend having a standard form as part of your established processes for collecting and reviewing these requests. 

Tips to review religious and medical exemption requests

When reviewing employee exemption and accommodation requests, it’s important to follow a process and consult with legal counsel if any questions arise. There are two types of exemptions possible under the vaccine mandate:

• Religious exemption – Employers must accommodate an employee’s sincerely held religious belief under Title VII of the Civil Rights Act (Title VII), unless the accommodation creates an undue hardship.

• Medical exemption – Under the ADA, employers must reasonably accommodate an employee’s disability, unless doing so would create an undue hardship for the employer or endanger the health and safety of other employees.

SHRM has posted a how-to guide that walks employers through the steps of handling a current employee’s accommodation request to be exempt from a vaccine requirement. There are nine steps from determining if the employer is covered by ADA and Title VII through engagement in the interactive process, making a determination, and employee notification. This article also provides employers an opportunity to download two “Request for Accommodation” forms, one for Medical Exemption and the other for Religious Exemption.

To prepare to process medical exemption requests, employers should first refresh on the ADA’s definition of a disability: “an impairment that substantially limits a major life activity.” Review ADA definitions and Title I details at the DOL’s ADA website. Title I of the ADA applies to employers with 15 or more employees and is enforced by the EEOC. The EEOC has created a section of its website specifically for COVID-19 issues, including information about reasonable accommodations in light of the pandemic.

Employers should be prepared that many exemption and accommodation requests won’t be easy or straightforward. For example, religious exemptions protected by Title VII are based upon a broad definition of “religion.” One legal blog takes a closer look at these standards and provides guidance to employers who may encounter religious accommodation requests:

• You should assume employees are claiming the exemption due to a sincerely held belief; if you have reason to question it, tread lightly. This is a “sensitive area of the law and employers should not haphazardly question an employee” or start calling around to check on these beliefs.

• Take time now to consider the accommodations you can offer to employees requesting exemption. What is possible given your work environment? Make sure they are “legitimate” options and “non-retaliatory”.

• Require the completion of a signed Religious Accommodation Request form that details the employee’s opposition to the vaccine.

• Thoroughly review the accommodation request throughout the interactive process. It is highly recommended that you document this process.

The help you need to create and maintain a safe workplace

As your business navigates the road ahead, be sure to consult legal counsel when appropriate, including during the interactive process, when making accommodation decisions, and upon notice of a potential lawsuit. It’s important to maintain documentation to help minimize risk to your business in the case of legal action. 

Asure is also here to help you navigate employment issues with our team of fully certified HR professionals. We provide access to the tools, resources, and manpower you need to make the best decisions for your business and employees.