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While employers brace for the many unknowns connected to the forthcoming federal employee mandate on vaccinations, there is much that they can be doing to prepare for the heightened risks of requiring workers to be vaccinated, legal experts say.
President Joe 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, and legal experts have raised many questions regarding OSHA’s latest COVID-19 measure.
“When? What are the parameters? There are a lot of big-picture concerns,” said Randi Winter, Minneapolis-based partner with Spencer Fane LLP, who said the recent announcement triggered calls from employer clients who are grappling with such issues as who will pay for the weekly testing, what proof of vaccination will be required and what other administrative costs are involved, such as keeping track of possible booster shots and the task of overseeing exemptions.
The administration did not set a timeline for OSHA to introduce the emergency standard. When Mr. Biden one day after his inauguration in January called on OSHA to create an emergency standard for COVID-19 workplace safety, the agency took more than four months to issue a standard. Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, said in an email that he expects a more compressed timeline for the vaccine standard given the urgency in the president’s speech.
OSHA did not respond to requests for comment.
Elizabeth Wylie, Denver-based partner in the labor and employment practice of Snell & Wilmer LLP, said employers that have already set mandates in motion are wondering whether their own plans will be sufficient to satisfy the forthcoming federal requirement.
“Employers who have already gone through the pain of a vaccine mandate and dealing with employee blowback, they really don’t want to revisit that,” she said.
In the meantime, 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.
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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 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 being highlighted, 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,” he said.
Adam Kemper, Fort Lauderdale, Florida-based partner with Kelley Kronenberg PA, 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.”
A workplace vaccine mandate will not free employers from instituting and continuing other infectious disease control measures, according to experts.
“Something we have been advising our clients on since the beginning (is) to never differentiate between your vaccinated and unvaccinated employees with regards to your infection control program,” said Dr. Scott Cherry, chief medical officer for The Woodlands, Texas-based Axiom Medical Consulting Inc., which provides human resources, legal and medical consulting for employers.
The reason is that vaccinated people can still spread COVID-19, he said.
The U.S. Centers for Disease Control and Prevention came to this conclusion at least twice. In August, the CDC released the finding of a study of a July outbreak in Provincetown, Massachusetts, where several hundred people attending a function were infected with COVID-19, about 74% of whom were fully vaccinated.
More recently, the agency released a study on Sept. 21 of a July/August outbreak of COVID-19 among 172 prisoners in an unnamed federal prison in Texas where 79% had been vaccinated. According to the CDC, 92.8% of the 42 unvaccinated inmates suffered an infection, as did 69.7% of the 185 fully vaccinated prisoners. However, the CDC said that severe illness was more common among the unvaccinated.
As much as there is a public policy benefit to vaccinations, there’s still an opportunity to spread infection if an individual is vaccinated, said Chuck Kable, Axiom Medical’s chief legal officer, general counsel and chief human resources officer.
“Ultimately when you think about this risk … it’s (about) implementing a holistic, layered approach across your enterprise,” he said, adding that companies “still need to do this other stuff,” such as what is required by the Occupational Safety and Health Administration and promoted by the CDC guidelines. Such measures include mask-wearing, social distancing and contact-tracing.