BY SAMUEL MARTIN
If your experience is like mine, time seemed to move slowly during the COVID pandemic, while at the same time, looking back, flew by as the world around has evolved rapidly. So, it may be hard to believe that less than a year ago, perhaps the biggest political—and legal—issue on the nation’s mind was the question of COVID vaccine mandates. At the end of 2021, when the landscape was much different than today, the federal government was in the process of implementing three separate, broad vaccine mandates on certain groups of private employers across the United States. By then, some private employers had chosen to institute their own vaccine mandates for their employees. As we enter fall of 2022, seemingly everything pandemic-related has changed. Only one of the three federal mandates has survived in full, and courts across the country have had the opportunity to weigh in on workplace vaccination mandates whether public or private. And you’ve probably watched the viral 60 Minutes’ interview where the president declared the pandemic to be over—behaviorly, at least. Given this progress, it is worthwhile to check back in to see where things have, at least for now, settled.
First, the federal mandates: Under President Biden, the US government implemented three distinct workplace vaccine mandates. Through the Occupational Safety and Health Administration (OSHA), a mandate was put in place requiring employers with 100 or more employees to either mandate vaccination among employees (with exceptions for medical and religious accommodations) or to put in place a vaccination or testing policy. As the broadest of the three employer mandates put in place by the Biden administration, it applied to all US employers with 100 or greater employees regardless of industry. After the federal government faced a number of lawsuits challenging this, OSHA ultimately elected to withdraw this large employer mandate, which is not in effect today.
The Kaiser Family Foundation has a list of state mandates on its website here.President Biden, acting by executive order, put in place another broad directive requiring federal contractors to mandate that their employees be vaccinated, while allowing for medical and religious exemptions. Initially, a federal judge in Georgia blocked enforcement of this mandate across the United States, while other courts blocked the measure within more limited areas or for certain groups of employers. On August 29, 2022, however, a federal appeals court partially reversed the Georgia court’s nationwide injunction. As a result, the contractor mandate is now back in force in a patchwork manner across the nation, with contractors in certain states or who are members of certain associations being exempt, while being in force against others. With the recent narrowing of the Georgia case, cases are like to spring back up across the country, and we can expect further challenges against this mandate to begin to develop rapidly.
Finally, the Biden administration put in place a mandate applicable to most health care providers across the country. Through the Centers for Medicare and Medicaid Services (CMS), the federal government implemented a mandate covering health care providers and suppliers that participate in Medicare and Medicaid. Like other federal mandates, CMS allows medical and religious exemptions. Uniquely the CMS mandate remains in effect across the country and has not been subject to injunctions by federal courts. By and large, most employees of covered Medicare and Medicaid providers are now required to comply by receiving two doses of COVID vaccine or supplying a medical or religious accommodation.
The withdrawal of the OSHA mandate and patchwork restriction on enforcing the federal contractor mandate mean that, for most American employers, the decision on whether to put in place a workplace vaccine mandate is left up to the employer’s own discretion. In most states, private employers remain free to put in place vaccine mandates for their own employees (though some states have enacted laws which restrict or bar completely such policies). These policies give rise to employer and employee questions about exemptions. Under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, employees are generally entitled to seek accommodations on disability and religious grounds from their employers.
The US Equal Employment Opportunity Commission (EEOC) has been updating its COVID guidance to cover this issue. The EEOC emphasizes that employers should consider employee vaccine exemption requests under the same framework they would for other disability or religious accommodation requests. For religious exemptions, employers should proceed on the assumption that a request for religious accommodation is based on sincerely held religious beliefs. This covers both traditional and non-traditional beliefs. An employer may be required to consider all possible reasonable accommodations, including telework and reassignment. However, employers facing a religious accommodation request are not required to bear more than a “de minimis” or minimal cost to accommodate the employee. This includes not only direct monetary costs but also the burden on the conduct of the employee’s business. Ultimately, the law requires employers to consider these requests on a case-by-case basis.
As the recent changes regarding the federal contractor mandate demonstrate, these vaccine mandate issues may now be out of the headlines, but these issues continue to develop on the legal front and employers must keep an eye on these issues as these changes take place. Given the complexity of the laws surrounding these matters, employers subject to a government vaccine mandate or who have implemented a mandate of their own should discuss these issues with their employment attorney and make sure to keep up to date on changes in the law. [CD1022]
Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.
Samuel Martin is an associate for the law firm, Jackson Lewis P.C. He can be reached at samuel.martin@jacksonlewis.com.