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Legal experts to employers: Prepare for vaccine mandate now


Legal experts say there is much that employers can be doing now as they brace for President Joe Biden’s forthcoming  COVID-19 vaccine mandate that will affect upwards of 100 million workers. 

Mr. Biden announced Sept. 9 that he had directed the Occupational Safety and Health Administration to introduce an emergency temporary standard that would mandate that companies with more than 100 workers require their employees to have COVID-19 vaccinations or submit to weekly testing.

Many details of the ETS have yet to be announced. Legal experts, citing OSHA’s months-long process for developing a COVID-19 safety standard that eventually only applied to health care workers, say developing the new standard could take several weeks.

OSHA did not respond to requests for comment on the timing of the standard.

Those consulting with companies say now’s the time to prepare their human resources departments and U.S. Equal Employment Opportunity Commission processes for what’s to come: requests for exemptions from workers who opt to not get the vaccine on religious or health grounds.

“Businesses owe it to themselves to put together a framework to manage this,” said Chuck Kable, chief legal officer, general counsel and chief human resources officer for The Woodlands, Texas-based Axiom Medical Consulting Inc. “You have to have a protocol and a process that you have to administer consistently and over time, and you have to treat everybody equally.”

“If an employer doesn’t properly consider those requests that can be a liability,” said George Ingham, Tysons Corner, Virginia-based partner with Hogan Lovells US LLP, adding that the process for getting an exemption through is an “involved” one that federal law requires employers to follow step by step or risk violating a worker’s rights.

An employee who requests an accommodation goes through what is called an “interactive process.”

“That process can take weeks, it can take months; sometimes you need to follow up several times and it can be burdensome if you get a lot of (exemption) requests,” Mr. Ingham said.

Employers that voluntarily initiated vaccine mandates have faced many exemption requests, according to numerous media reports. For example, “thousands” of employees with the Los Angeles Police Department have filed for exemptions from the city’s mandate that workers be vaccinated by Sept. 13.

Widespread questioning of the legitimacy of some requests is also making headlines, with religious groups taking either side of the contentious issue of religious exemptions, and medical experts chiming in on health exemptions that may not pass muster.

“There are not a lot of clinical reasons to not get vaccinated,” said Dr. Jeff Levin-Scherz, Boston-based population health leader at Willis Towers Watson PLC and assistant professor in the Department of Health Policy and Management at Harvard University. Such requests could face challenges, he said.

“You have to have something that rises to the level of disability,” Mr. Ingham said of health-related exemptions. “Where employers can trip up is when they don’t treat employees equally with those requests.”

Adam Kemper, Fort Lauderdale, Florida-based partner with Kelley Kronenberg P.A., said companies instituting mandates expose themselves to numerous liabilities — from failing to maintain and keep private workers’ health information to failing to follow steps in EEOC exemption requests. 

“Any mishandling of an exemption request can run afoul of anti-discrimination laws,” he said, adding “there’s nothing that prevents a company, especially one not familiar with these issues, from now bringing in appropriate HR personnel, a consultant or employment counsel to understand what to expect.”