Since the beginning of the COVID-19 pandemic, my clients have asked a lot of questions about paying employees for time spent testing for COVID-19 and receiving the COVID-19 vaccine. The United States Department of Labor previously provided some guidance on their web page of Questions and Answer Related to COVID-19 and the Fair Labor Standards Act. Here’s what DOL said:
7. If my employer requires COVID-19 testing during the workday, do I need to be paid for the time spent undergoing the testing?
Yes, under the FLSA, your employer is required to pay you for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
8. My employer is requiring me to undergo COVID-19 testing on my day off before I can return to the jobsite. Do I need to be paid for the time spent undergoing the testing?
It depends, under the FLSA, your employer is required to pay you for all hours that you work, including for time on your vacation day if the task you are required to perform is necessary for the work you are paid to do. For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic. For example, if a grocery store cashier who has significant interaction with the general public is required by her employer to undergo a COVID-19 test on her day off, such time is likely compensable because it is integral and indispensable to her work during the pandemic. Other laws may offer greater protections for workers, and employers must comply with all applicable federal, state, and local laws.
DOL and its Wage & Hour Division have now released “Fact Sheet #84,” which provides an additional level of detail for employers struggling with these issues. Here’s a link to the DOL Fact Sheet: DOL Fact Sheet #84. Here are the rules from that Fact Sheet in a nutshell:
If an employer requires an employee to get vaccinated or tested for COVID-19 during normal working hours, the employer must pay for the time spent engaging in that activity.
If an employer requires an employee to get vaccinated or tested outside normal working hours, the employer must pay for that time if the vaccine or testing is necessary for them to safely and effectively perform their job. Although not explicit, it appears that DOL is assuming that vaccines and testing are necessary for virtually all employees to safely and effectively perform their jobs. The example used by DOL involves assembly line workers and says: “the vaccine is necessary for them to safely and effectively perform their assembly line jobs.”
Some employers have implemented vaccine mandates and granted accommodations to employees who cannot receive the vaccine for health-related or religious reasons. If the employer requires COVID-19 testing of those accommodated employees outside normal working hours, the employer must pay for the time.
Some employer have adopted vaccine mandates with a voluntary test-out option. If an employee voluntary declines to be vaccinated (without a religious/health exemption), and the employer requires testing outside normal working hours, the employer is not required to pay for the time.
Where vaccination or testing is not required by an employer, an employee’s voluntary decision to be tested or vaccinated outside normal working hours is not compensable.
My strong suggestion is that employers should follow this guidance from DOL. Nevertheless, stubborn employers might have an argument that they are not required to pay for testing and vaccination outside normal working hours. The general rule is that employers must pay for time outside of working hours if that time is “integral and indispensable” to the employee’s job.
And, DOL clearly considers vaccine/testing time to be “integral and indispensable” in most circumstances. But, at the end of the day, only a federal judge can decide if an employer has violated the Fair Labor Standards Act. And, generally, federal judges in the Eleventh Circuit (which includes Alabama) tend to be more conservative than the DOL. See Bonilla v. Baker Concrete Constr. Inc., 487 F.3d 1340 (11th Cir. 2007)(time spent by construction workers waiting to go through airport security was not “integral and indispensable” to their work.) So, it might be possible to argue, on a case-by-case basis, that vaccine/testing time is not “integral and indispensable” to a particular job. Again, I would not recommend this course of an action. But, it’s an argument that employers can make if push-comes-to-shove.
This afternoon, the United States Supreme Court released two opinions dealing with the Biden Administration’s COVID-19 vaccine mandates. In the first, the Court dealt a death blow to the OSHA mandate, which required vaccines and/or testing for all employers with 100 or more employees. In the second, the Court found that the vaccine mandate for health care facilities was a valid exercise of power.
OSHA Mandate: National Federation of Independent Businesses v. Department of Labor
You can read the Supreme Court’s OSHA opinion here: OSHA Opinion. You may recall that the Sixth Circuit Court of Appeals issued an opinion in December upholding OSHA’s vaccine-or-test requirements. Here’s the blog post that I wrote on that decision: Sixth Circuit Upholds Mandate. Numerous States, businesses and nonprofit organizations asked the Supreme Court for emergency relief “staying,” or halting, the OSHA rule. The Court granted that relief and the OSHA mandate is now on hold.
In short, the Court found that the United States Secretary of Labor lacked authority to impose the OSHA mandate. The mandate “operates as a blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.” Moreover, the Court called the rule a “broad public health measure” which went beyond OSHA’s authority to “set workplace safety standards.”
Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
And, in concluding its opinion, the Court issued this declaration: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
Before this opinion was issued, some commentators thought that the Supreme Court might strike down the mandate because it exceeded the Secretary of Labor’s power to issue an emergency rule. But, this opinion largely ignores the emergency nature of the rule and broadly says that the Secretary of Labor does not have Congressional authority to issue this type of broad health program.
The opinion leaves open the possibility that OSHA might be able to impose mandates in specific types of workplaces — if there is an “occupation-specific risk related to COVID-19.”
We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.
So, we might see OSHA attempt more-narrow vaccine mandates in the future. But, for now, the broad-based requirement for employers with 100 or more employees seems finished.
CMS Mandate: Biden v. Missouri
The CMS vaccine mandate was developed by the United States Secretary of Health and Human Services. It applies to most medical facilities that receive Medicare or Medicaid funding. For example, if a hospital wants to be paid for treating Medicare or Medicaid patients, it must ensure that its employees and medical staff are vaccinated, or have a valid religious or medical exemption.
In contrast to its OSHA opinion, the Supreme Court held that the Secretary of Health and Human Services acted within his authority when he implemented the CMS mandate. The ultimate conclusion was that “there can be no doubt that addressing infections problems in Medicare and Medicaid facilities is what [the Secretary] does.” Thus, the Court drew a stark contrast between the OSHA and CMS:
The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.
Many of my clients are government contractors and are anxiously awaiting the fate of the Biden Administration’s mandate for federal contractors. Right now, the federal contractor requirement is stayed nationwide. Here’s the blog post I wrote about the stay: Federal Contractor Mandate Halted.
The federal contractor requirement has not yet made it to the Supreme Court. Do today’s opinions give us any clue how the Supreme Court might rule when it reviews the federal contractor mandate? Maybe.
If I was forced to bet, I would guess that today’s opinions don’t bode well for the federal contractor mandate. Essentially, the Supreme Court said: “OSHA is not in the public health business, but CMS is. So, we’ll let CMS regulate public health in medical facilities, but we won’t let OSHA regulate public health in the workplace.” The federal contractor mandate is the result of President Biden’s Executive Order 14042. So, is the President in the public health business when he (or an executive agency) enters into contracts?
My gut says: “No.” For that reason, I think the federal contractor mandate might get overturned. Nevertheless, there are parts of the CMS opinion that support President Biden’s authority. For example, the Court noted that “healthcare facilities have always been obligated to satisfy a host of conditions that address the safety and effectiveness of healthcare, no simply sound accounting.” Also, the Secretary of Health and Human Services “routinely imposes condition of participation that relate to the qualifications and duties of healthcare workers themselves.”
Those findings can also apply to federal contractors. For example, “[federal contractors] have always been obligated to satisfy a host of conditions that address the safety and effectiveness of [government services].” Also, federal agencies “routinely impose conditions of participation that relate to the qualifications and duties of [government contractor employees].”
As always, stay tuned. When new developments occur, I will discuss them as soon as possible.
On Friday, the United States Court of Appeals for the Sixth Circuit entered an order and opinion reinstating OSHA’s vaccine mandate for employers with 100 or more employees. Here’s a link to that opinion: Sixth Circuit Vaccine Mandate Opinion.
It’s too early to say what the ultimate outcome of this legal battle will be. At least ten interested parties have filed applications with the United States Supreme Court asking for an emergency stay of the OSHA mandate. Justice Brett Kavanaugh is responsible for ruling on those motions. He can stay the mandate on his own or refer the stay request to the Supreme Court as a whole. The Court has asked the Biden Administration to respond to the applications by December 30, 2021. Appellate experts expect a decision in January.
In the interim, OSHA took a quick victory-lap with an important Press Release on Friday. It stressed two important dates:
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
So, if the Supreme Court takes no action in the near future, we know that these dates are important.
January 10, 2022: This is the day OSHA will being enforcing all aspects of the vaccine mandate. Not sure what all of those requirements are? Here’s my original article discussing the general requirements of the OSHA mandate: OSHA Issues Vaccine Mandate for Private Employers. Employers who are making “reasonable, good faith efforts to come into compliance” will get a grace period for the testing requirement.
February 9, 2022: The grace period expires. Presumably, OSHA will begin citing covered employers for noncompliance with the mandate.
I strongly recommend that employers prepare for the possibility that the OSHA mandate will survive the Supreme Court’s scrutiny. Most lawyers still think the odds are stacked against the mandate. But, you don’t want to be caught unprepared. At a bare minimum:
Decide if you want to mandate vaccines for your employees — with no “test out” option. If that’s your course of action, download OSHA’s sample policy and start taking steps to implement. Here’s a link to that policy: OSHA Sample Policy Mandating Vaccination
In the alternative, you can implement a policy allowing employees to mask and take weekly testing — instead of vaccinating. If that’s your plan, download OSHA’s sample policy and start taking steps to implement. Here’s a link to that policy: OSHA “Test Out” Policy
As always, stay tuned. More details are sure to come.
A federal judge in Georgia has halted President Biden’s vaccine mandate for federal contractors. Judge R. Stan Baker found that President Biden exceeded his authority under the Federal Property and Administrative Services Act (“FPASA”) when he issued the mandate. Here is a link to Judge Baker’s order: Order Halting Mandate Nationwide. Last week, I wrote about a similar order issued by Judge Gregory F. Van Tatenhove that halted the federal contractor mandate in Tennessee, Kentucky and Ohio. I predicted that “the Georgia judge could use Judge Van Tatenhove’s order as a roadmap for a similar injunction.” That prediction came true. Although Judge Baker’s decision is not a word-for-word copy of the earlier order, it is virtually identical in substance and layout. Judge Baker’s order is encapsulated in the following sentence:
The Court finds that Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.
Like Judge Van Tatenhove, Judge Baker was also required to determine the geographic scope for his order. The original plaintiffs (suing parties) were the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and various state agencies, including the Board of Regents of the University System of Georgia. And, if those were the only plaintiffs, Judge Baker might have limited the scope of his order to those states. But, before issuing his ruling on the injunction, Judge Baker allowed a new party, Associated Builders and Contractors, Inc. (“ABC”), to join the case opposing the mandate. Because ABC is a trade organization with members throughout the county, Judge Baker found that his injunction needed to have nationwide applicability.
So what does this mean for federal contractors?
At a minimum, Judge Baker’s injunction gives some breathing room to federal contractors struggling to comply with the vaccine mandate. At least for right now, the mandate is on hold. But, for how long?
Judge Baker’s order will certainly be appealed to the Eleventh Circuit Court of Appeals in the next few days. For example, the government appealed Judge Van Tatenhove’s order within three days. The government will ask Judge Baker, and then the Eleventh Circuit, for an emergency order halting the nationwide injunction. In short, the Eleventh Circuit could “reactivate” the mandate pending appeal.
We can glean some guidance on timing from a recent series of events in the State of Florida’s challenge to the mandate issued by the Centers for Medicare and Medicaid Services (“CMS”) for health care facilities: Florida v. Department of Health and Human Services, No. 21-14098-JJ, 2021 WL 5768796 (Dec. 6, 2021). Florida filed a lawsuit and asked for a preliminary injunction halting the CMS mandate. But, in that case, a federal judge in Florida issued an order refusing the injunction on November 20, 2021. Florida appealed on November 24, 2021 and asked the Eleventh Circuit for an emergency ruling implementing the injunction. On December 6, 2021, a divided three-judge panel of the Eleventh Circuit entered an order rejecting that emergency motion.
In summary, the Eleventh Circuit issued an order within twelve days in the Florida CMS case. So, it is probably reasonable to expect a similar timeframe when the government appeals Judge Baker’s order.
What can we expect when the Eleventh Circuit rules? The answer to that question largely depends on the judges assigned to the three-judge panel that will review Judge Baker’s order. In the Florida case, Judge Rosenbaum and Judge Jill Pryor spent a large part of their opinion criticizing a case issued by a judge in Louisiana (part of the Fifth Circuit) implementing a nationwide injunction while the Eleventh Circuit appeal was pending. The opinion in the Florida case can be found here: Florida v. HHS. Judge Rosenbaum and Judge Pryor clearly thought that the Louisiana judge should not have entered a nationwide order, but instead limited his injunction to the parties before him, who were states. Presumably, this is why Judge Baker added ABC as a party to his lawsuit — as part of an effort to establish that at least one the parties before him has nationwide interests.
Nevertheless, there is a possibility that the panel reviewing Judge Baker’s order might follow Judge Rosenbam and Judge Pryor’s lead and overturn at least the nationwide aspect of Judge Baker’s order. If that happens, however, it is possible that the injunction might remain in place for the States before Judge Baker: Alabama, Georgia, Idaho, South Carolina, Kansas, Utah and West Virginia.
This constantly evolving situation remains clear-as-mud. Right now, it looks like federal contractors in Alabama have at least a two-week reprieve from compliance with the vaccine mandate. During that time, I encourage contractors to ensure that they have policies and procedures in place for compliance with the mandate in the event that it is “reactivated” in some fashion. Fortunately, even before Judge Baker’s order, the Safer Federal Workforce Task Force made clear that it was willing to work with federal contractors making “good faith efforts” at compliance. If you have a plan in place for compliance, then I am hopeful that contracting officers will work with you in the future if the mandate is reinstated.
President Biden’s vaccine mandate for federal contractors has been halted in Tennessee, Kentucky and Ohio. Those states filed a lawsuit on November 8, 2021 and asked for a preliminary injunction stopping enforcement of the order. Yesterday, United States District Court Judge Gregory F. Van Tatenhove in the Eastern District of Kentucky entered an order granting that injunction. Here is a link to Judge Van Tatenhove’s order: Order Enjoining Contractor Mandate
In summary, Judge Van Tatenhove found that President Biden exceeded his authority when he issued an Executive Order implementing the mandate. The order focuses on whether the mandate is a proper exercise of authority under the Federal Property and Administrative Services Act (“FPASA”). Congress passed FPASA to create an economical and efficient system for procurement and supply for the federal government. But, Judge Van Tatenhove found that a procurement statute could not permissibly be used to implement a public health measure: “While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination.”
What does Judge Van Tatenhove’s order mean for federal contractors?
Strictly speaking, this order only impacts contractors in Tennessee, Kentucky and Ohio. Contractors and subcontractors in those states do not have to comply with the mandate at this time.
What about contractors that are headquartered in Tennessee, Kentucky or Ohio, but have employees in other states? Judge Van Tatenhove did not explicitly address that scenario. The order says that the federal government is enjoined from “enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” So, if the contract is “in” one of those states, the injunction might arguably require contractors to halt vaccine efforts for employees outside the state. The only way to get a real answer on this issue will be if one of the parties asks the Judge for clarification.
The order does not affect contracts “outside” Tennessee, Kentucky and Ohio. Therefore, contractors outside those states should continue with their preparations for the vaccine mandate. At the same time, keep watching the news. Judge Van Tatenhove is not the only federal judge considering a challenge to the contractor mandate.
In fact, Alabama Attorney General Steve Marshall and the State of Alabama joined a similar lawsuit filed in the United States District Court for the Southern District of Georgia. Here’s a link to a copy of the complaint in that case: Georgia Contractor Mandate Lawsuit. I’m told that a hearing has been set in that case for this Friday, December 3, 2021. Potentially, the Georgia judge could use Judge Van Tatenhove’s order as a roadmap for a similar injunction.
Do you have questions about the federal vaccine mandates? Are you struggling with federal compliance in the face of Alabama’s new law limiting vaccine requirements?
If so, please join me next Wednesday, November 17 at 1:00 CST for a free webinar discussing the mandates and compliance issues. I’m teaming with ADP to provide guidance on, and potential solutions to, many of the issues employers are facing.
Late last week, the Alabama Legislature passed, and Governor Kay Ivey signed, SB9 which is designed to restrict the ability of Alabama businesses to impose vaccine mandates on their employees. Here is a link to SB9: SB9 Limiting Vaccine Mandates. While there are many unanswered questions in SB9, I think most Alabama businesses will be able to comply with federal vaccine mandates while simultaneously complying with SB9.
Here are my big takeaways regarding SB9:
1. Employers are required to give their employees a specific vaccine exemption form.
Employers cannot require any employee to receive a vaccination as a condition of employment without providing an opportunity to be exempted for religious or medical reasons. Most importantly, employers must use a specific form drafted by the Legislature. To access that form: (1) click on the the SB9 link above; (2) go to page 2, line 18 of SB9; (3) “cut and paste” all text through page 5, line 5. The form must be made “readily available” to all employees along with directions for submitting the form.
2. Denials of exemptions are appealable and employers cannot terminate employees based upon vaccination status until conclusion of an appeal.
If an employer denies an exemption request, the employee will be allowed to appeal that denial to an Administrative Law Judge appointed by the Alabama Secretary of Labor. If the ALJ also denies the exemption, the employee will be able to file an appeal with a court of competent jurisdiction.
SB9 also recognizes that employers might want to terminate based on vaccination status after denying an exemption. The new law prohibits any such termination until an administrative law judge or court issues a final ruling in the employer’s favor.
3. Here’s what SB9 DOESN’T do.
SB9 does not limit an employer’s ability to gather information. It says that employers must provide the Alabama form to employees. But, it does not say this is the onlyform that can be given to employees. SB9 does not restrict the duty or obligation of employers to engage in an “interactive process” with employees who request an accommodation or exemption.
SB9 does not limit the accommodations that an employer can require. In fact, SB9 says nothing whatsoever about accommodations. Some of my risk-averse clients have been fairly liberal in granting exemption requests even before SB9 was passed. Indeed, exemption from the vaccine is not an exemption from the obligation to protect your co-workers. Employers who grant exemptions under SB9 can also require that employees test for COVID-19 weekly and wear masks while around other employees.
3. The Alabama grounds for exemption are expansive.
The Centers for Disease Control has extensively discussed the impact of the COVID-19 vaccine on particular groups of people. (CDC COVID-19 Vaccine Discussion). This new Alabama law seems to take a different view of COVID-19 and allows employees to attempt to opt-out of vaccines based on: (1) their own statements of health history; or, (2) a generic statement that the vaccine conflicts with sincerely held religious beliefs, practices or observances — without requiring a statement defining those beliefs. Here’s the complete list of grounds for exemption:
My health care provider has recommended to me that I refuse the COVID-19 vaccination based upon my current health conditions and medications. (Note: This is the only ground that requires the signature of a “licensed health care provider.” Other health-based reasons discussed below don’t require any medical support.)
I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.
I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.
I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.
I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the last 90 days.
I have a bleeding disorder or am taking a blood thinner.
I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.
I have been diagnosed with COVID-19 in the past 12 months.
Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.
4. Mandated exemption or just a presumption?
SB9 says that “[a]n employer shall exempt vaccination as a condition of employment for any employee who has submitted the exemption form ….” This seems fairly clear: If the employee fills out the State-sponsored exemption form, they don’t have to get vaccinated.
But, the law later says that “submission of the completed form creates a presumption that the employee is entitled to the exemption.” Moreover, it sets forth a process for an employee to challenge a “denial of a request for an exemption.” Thus, it seems that employees don’t automatically get an exemption if they fill out the form.
This internal inconsistency is important. In the next few points, I discuss conflicts between SB9 and federal mandates. If completing the form is a mere “presumption” of exemption, then Alabama employers might be able to argue that the presumption is rebutted by the requirements of federal law.
5. There are conflicts with the vaccine mandate for federal contractors.
The most glaring ground for exemption under SB9 is COVID-19 diagnosis in the last 12 months. That exemption flies directly in the face of the federal contract mandate (found here Federal Contractor Mandate) which plainly states that “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated ….”
Notably, the federal contractor mandate allow employers to grant exemptions for health reasons and sincerely held religious beliefs. So, in some ways, SB9 comports with that mandate. This is where it is important for Alabamians to know if exemption is mandated upon completion of the SB9 form or if it is merely a presumption that can be rebutted. If it’s a presumption, then I think that a federal contractor could argue that the presumption of exemption for past COVID-19 infection is rebutted because federal law does not allow an exemption for federal contractor employees on that ground.
6. There are conflicts with the CMS mandate for many medical facilities.
I discussed CMS’s vaccine mandate for medical facilities here: CMS Vaccine Mandate. That mandate imposes strict requirements on employees who seek exemptions for medical reasons:
For staff members who request a medical exemption from vaccination, all documentation confirming recognized clinical contraindications to COVID–19 vaccines, and which supports the staff member’s request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable State and local laws. Such documentation must contain all information specifying which of the authorized COVID–19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID–19 vaccination requirements based on the recognized clinical contraindications.
Obviously, SB9 does not require that level of detail for employees to obtain an exemption for medical reasons. Indeed, Alabama apparently prefers that employers to just take the employee “at their word” for a host of medical issues.
Once again, the issue will be whether exemption is mandatory once the employee submits the SB9 Form. If the form merely creates a presumption, then facilities covered by the CMS mandate might be able to argue that the presumption is rebutted by the CMS mandate requiring a more-detailed statement for medical exemptions.
7. No direct conflict with the OSHA mandate for employers with 100+ employees.
Last week, OSHA also imposed a vaccine mandate on employers with 100 or more employees. I wrote about that mandate here: OSHA Vaccine Mandate. The OSHA mandate offers employers the option to adopt: (1) a policy mandating all employees be vaccinated; or, (2) a policy where employees can “test out” of vaccine requirements. Under the “test out” option, employees are not required to be vaccinated if they test for COVID-19 on a weekly basis and observe masking protocols. If Alabama employers adopt the “test out” option, there does not appear to be a direct conflict between OSHA and SB9.
Even so, there is some level of conflict. As discussed above, SB9 grants an exemption to employees who have been infected with COVID-19 in the last 12 months. But, the OSHA standard “does not offer any exemptions to vaccination requirements based on ‘natural immunity’ or the presence of antibodies from a previous infection.”
8. Is leave without pay an option?
SB9 only restricts the ability to terminate an employee. What if an employer decides not to “terminate”? In other words, an employer could grant an exemption and then move the employee to long-term leave without pay status. This would be an aggressive strategy by the employer.
Technically, the employee could not appeal under SB9 because that law only allows appeals where exemptions are denied. But, long-term leave without pay would probably be considered a “constructive discharge.” Employers adopting this strategy would probably face a legal challenge of some kind.
9. Additional possible loophole?
Section (h)(2) of SB9 says: “Nothing in this section shall be construed to alter or amend the ability of an employer to terminate an employee for reasons other than the employee’s COVID-19 vaccination status.” This seems to reiterate that Alabama is an “employment at will” state. This means that, in the absence of an employment contract, an employer or employee can terminate the employment relationship at any time. Indeed, “employment at will” is so strong in Alabama that courts repeatedly say that an employee can be fired “for a good reason, a bad reason or no reason at all.”
SB9 also clearly states that it does not “create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer.” This means that employees cannot sue for wrongful termination. Instead, the only remedy allowed by SB9 is review “of an employee’s denial of a request for an exemption” by an Administrative Law Judge and Alabama’s courts.
I think creative attorneys could figure out ways to argue that a termination is “for reasons other than the employee’s COVID-19 vaccination status.” I also think that a “mixed motive” analysis (where vaccine status and some other reason provide the impetus for termination) could provide a defense.
10. The Alabama Department of Labor has to provide a process for employees.
SB9 requires that the Alabama Department of Labor develop a process for employees to appeal the denial of their exemption requests. DOL is supposed to release that process by November 26. In that process, DOL must appoint Administrative Law Judges to review the appeals. And, even after the ALJ rules, employees must be given the right to file a further appeal in “a court of competent jurisdiction.”
As soon as DOL issues its rules regarding the appeal process, I will provide an update.
11. Closing Thoughts
I think the Legislature’s main goal in passing SB9 was to force businesses to think-twice before terminating an employee based upon a vaccine mandate. And, SB9 dramatically slows the process for terminating employees on that ground.
But, as a practical matter, I was already advising my clients to think-twice before termination. Any time an employee asks for a religious or disability accommodation of any kind, an employer incurs risk if they terminate soon thereafter.
Each of of the federal vaccine mandates allows employers to exempt employees who have disabilities or sincerely held religious beliefs. SB9 is designed to liberalize the process for granting exemptions. But, at the end of the day, employers just need to proceed carefully and gather as much information as reasonably possible before deciding to grant or deny an exemption request. If an exemption is denied, employees can now appeal that denial to an ALJ and drag the process out. Otherwise, the process largely remains the same. Employers just have to use the additional form mandated by SB9 as part of that process.
Yesterday, the Centers for Medicare and Medicaid Services issued an Interim Final Rule with Comment Period (“IFC”) that effectively imposes a vaccine mandate on many healthcare providers. Here’s a link to that rule: CMS Vaccine Mandate. CMS also issued a set of Frequently Asked Questions regarding the mandate, which can be found here: CMS Mandate FAQ’s This rule is expected to cover more than 17 million workers at approximately 76,000 healthcare facilities around the country.
Here are the highlights.
1. Who’s covered?
The IFC primarily applies to healthcare facilities, not individual physicians’ offices. Nevertheless, other healthcare providers (including physicians’ offices) remain subject to the Emergency Temporary Standard issued by OSHA in June. Here’s a link to OSHA’s ETS web page: OSHA Healthcare ETS Page.
CMS generally categorizes entities covered by the new IFC as: (1) residential congregate care facilities; (2) acute care settings; (3) outpatient clinical care and service; and, (4) home-based care. Here is a complete list of the categories of affected entities and their C.F.R. sections:
Programs of All-Inclusive Care for the Elderly (PACE) (§ 460.74)
Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) (§ 482.42)
Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)
Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)
Home Health Agencies (HHAs) (§ 484.70)
Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)
Critical Access Hospitals (CAHs) (§ 485.640)
Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725)
Community Mental Health Centers (CMHCs) (§ 485.904)
Home Infusion Therapy (HIT) suppliers (§ 486.525)
Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)
Employees who provide services 100% remote or who have no direct contact with patients or other staff are not require to be vaccinated. The IFC also recognizes that exemptions must be granted for medical and religious reasons.
Physicians with admitting privileges at acute care hospitals will be covered by the vaccine requirement.
The IFC requires adoption of policies that apply to all facility staff, regardless of clinical responsibility or patient contact and including all current staff as well as any new staff, who provide any care, treatment, or other services for the facility and/or its patients: Facility employees; licensed practitioners; students, trainees, and volunteers; and individuals who provide care, treatment, or other services for the facility and/or its patients, under contract or other arrangement.
2. What’s required?
Facilities must develop and implementpolicies and procedures to ensure that all staff are fully vaccinated for COVID-19. By December 5, 2021, staff must receive at least the first dose of the vaccine. If they don’t, they cannot provide any care, treatment or other services for the facility or its patients. By January 4, 2021, staff must have completed or received their second vaccine dose.
Those policies and procedures must include, at a minimum, the following components:
(i) A process for ensuring all staff (with the exception of those who are exempted or medically-delayed) have received within 30 days, at a minimum, a single-dose COVID-19 vaccine, or the first dose of the primary vaccination series for a multi-dose COVID-19 vaccine, prior to staff providing any care, treatment, or other services for the center and/or its patients;
(ii) A process for ensuring that all staff are full vaccinated within 60 days;
(iii) A process for ensuring the implementation of additional precautions, intended to mitigate the transmission and spread of COVID-19, for all staff who are not fully vaccinated for COVID-19 (as discussed below there is no “test out” exception like there is for OSHA;
(iv) A process for tracking and securely documenting the COVID-19 vaccination status of all staff;
(v) A process for tracking and securely documenting the COVID-19 vaccination status of any staff who have obtained any booster doses as recommended by the CDC;
(vi) A process by which staff may request an exemption from the staff COVID-19 vaccination requirements based on an applicable Federal law;
(vii) A process for tracking and securely documenting information provided by those staff who have requested, and for whom the center has granted, an exemption from the staff COVID-19 vaccination requirements;
(viii) A process for ensuring that all documentation, which confirms recognized clinical contraindications to COVID-19 vaccines and which supports staff requests for medical exemptions from vaccination, has been signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable State and local laws, and for further ensuring that such documentation contains:
(A) All information specifying which of the authorized or licensed COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and
(B) A statement by the authenticating practitioner recommending that the staff member be exempted from the center’s COVID-19 vaccination requirements based on the recognized clinical contraindications;
(ix) A process for ensuring the tracking and secure documentation of the vaccination status of staff for whom COVID-19 vaccination must be temporarily delayed, as recommended by the CDC, due to clinical precautions and considerations, including, but not limited to, individuals with acute illness secondary to COVID-19, and individuals who received monoclonal antibodies or convalescent plasma for COVID-19 treatment; and
(x) Contingency plans for staff who are not fully vaccinated for COVID-19.
3. A simple doctor’s note is not enough for a medical exemption.
Please pay attention to the process for obtaining a medical exemption. Many private-sector employers are accepting doctor’s notes as sufficient evidence of the need to grant a medical exemption to the vaccine mandate. CMS is impose much more stringent measures. A detailed, signed statement on the contraindications for vaccination for the particular employee is required.
4. There is no “test out” exception under this rule.
The OSHA standard released on November 4, 2021 gives employers an option: (1) they can adopt policies mandating vaccinations for all employees; or (2) they can adopt policies allowing employees to decline the vaccination if they engage in weekly testing and mask wearing. There is no such exception for under the CMS rule.
On the evening of November 3, 2021, the White House arranged a telephone conference between the press and “Senior Administration Officials” but directed the press not to release details until November 4. A transcript of that call can be found here: Background Press Call on Vaccinations. When asked about a “test out” provision, one official said: “There is not a testing option. We have a higher bar for healthcare workers, given their critical role in ensuring the health and safety of their patients. And so, it’s either vaccination or an exemption under the rules outlined.”
5. Enforcement / Consequences
CMS’s rule is a Condition of Participation for Medicare and Medicare. As a result, failure to comply with the rule can potentially lead to monetary penalties and even termination from participation. Nevertheless, CMS’s list of FAQ’s includes says that the “goal is to bring health care facilities into compliance. Termination would generally occur only after providing a facility with an opportunity to make corrections and come into compliance.”
Facilities can expect surveyors to review compliance and issue citations for noncompliance. CMS discusses the three types of citations as follows:
“Immediate Jeopardy” citations indicate a serious scope of non-compliance, failure of the provider to address deficiencies, and close interaction with patients of unvaccinated staff. Termination of the provider type will occur within 23-days following the citation if not immediately addressed.
“Condition” level citations indicate substantial non-compliance that needs to be addressed to avoid termination.
“Standard” level citations indicate minor non-compliance where (with respect to this rule) almost all staff are vaccinated, the provider has a reasonable policy in place to educate staff on the vaccinations, and the provider has procedures for tracking and monitoring vaccination rates. CMS generally allows for continued operation subject to the facility’s agreement to a CMS-approved plan of correction.
6. CMS Mandate? OSHA Mandate? Both?
It’s not clear whether these facilities are supposed to also comply with the OSHA vaccine mandate for employers with 100+ employees. Here’s my discussion of that mandate: OSHA Vaccine Mandate Blog The OSHA mandate says that it does not apply for employees who are subject to OSHA’s earlier Healthcare ETS. But, it is silent on whether the CMS mandate pre-empts the OSHA mandate.
Nevertheless, during the phone call with “Senior Administration Officials” on Wednesday evening, an official speaking for CMS said: “For Medicare- and Medicaid-certified providers, these vaccination regulations supersede all others, including state regulations and those issued by OSHA.“
Private employers with 100 or more employees are required to implement a new vaccine mandate. This morning, the United States Occupational Safety and Health Administration issued its Emergency Temporary Standard requiring those employers to adopt policies addressing COVID-19 testing, masking and vaccines. While the Standard itself is only 17 pages long, OSHA devoted an additional 473 pages of Preamble to explaining it. Here is a link to the Standard and its Preamble: OSHA Vaccine Mandate. In addition to that daunting document, OSHA created a “Frequently Asked Questions” web page that can be found here: OSHA Vaccine FAQs. OSHA also simultaneously released a webinar with an overview of the mandate, here: OSHA Vaccine Webinar
Here are my big takeaways:
1. Who’s NOT covered?
OSHA’s rule does not apply to federal contractors who are already subject the vaccine mandate originating with President Biden’s Executive Order 14042. I’ve written extensively about obligations under that Order: Federal Contractor Vaccine Mandate
Healthcare workers are not covered by the new OSHA rule if they are already subject to a prior ETS that was released for healthcare workers in June. Details on the healthcare ETS can be found here: Healthcare ETS
Three types of employees are not covered: (1) Employees who do not report to a workplace where other individuals such as co-workers or customers are present; (2) employees who are working at home; and, (3) employees who work exclusively outdoors.
2. How do I determine if I have 100 or more employees?
Employers must count all employees across all United States locations.
“[T]wo or more related entities may be regarded as a single employer for OSHA purposes if they handle safety matters as one company ….”
Franchisors and franchisee will usually be separate entities with separate employees. Employees referred by a staffing agency will probably be counted as employees of the staffing agency rather than the client-company.
Fluctuations in employee count are biased in favor of vaccination. The effective date of the ETS is tomorrow, November 5, 2021. If you don’t have 100 employees tomorrow, you don’t have to comply with the mandate. But, once you hit 100 at a later date, you have to comply. And, if you have 100 employees tomorrow, you must comply with the mandate throughout the duration of the ETS — even if your employee count dips below 100.
To determine overall coverage, you MUST count all employees — even if they fall within the three categories of “solitary” employees who aren’t covered. In other words, if you have 105 employees, and 10 of them work exclusively outdoors, you still have to comply with the mandate for the 95 employees who do not work exclusively outdoors.
3. Covered employers must adopt a mandatory vaccination policy.
The ETS requires that covered employees adopt a “mandatory vaccination policy.” Fortunately, OSHA has done most of the heavy-lifting by issuing sample policy with a vaccine mandate: Sample Vaccination Policy
4. Employers CAN avoid the vaccine mandate by mandating testing and face coverings.
The ETS creates a “limited exception” to the vaccination policy. Employers can avoid the mandate by establishing, implementing and enforcing a written policy allowing any employee not subject to mandatory policy to choose either to: (1) be fully vaccinated against COVID-19; or, (2) provide proof of weekly testing for COVID-19 AND wear a face covering. Such employees must wear the face covering while in the workplace or in a car with a co-worker. Employers are not required to pay the costs for such employees’ weekly testing. OSHA also provided a sample policy for those employers that want to permit employee choice: Employee Choice Vaccination Policy
5. Paid Time Off for getting the vaccine and its adverse effects.
Employees must provide employees with up to four (4) hours of Paid Time Off for each dose of the vaccine. If an employee takes more than four hours, the additional time is protected, but unpaid. In other words, you can’t fire an employee for taking more than four hours to get a dose of the vaccine.
This is a new and mandatory benefit. Employers cannot require employees to use pre-accrued PTO to pay for getting the vaccine dose itself.
If an employee misses work because of adverse effects from the vaccine, they must receives some paid leave. An employer can require use of accrued PTO to deal with adverse effects. But, if an employer differentiates between vacation and sick leave, the employer cannot require an employee to use accrued vacation for adverse effects. Employees cannot be forced “into the negative” if they do not have accrued PTO/sick leave. The ETS allows employers to set a “reasonable” cap on paid leave to deal with adverse effects. Generally, OSHA presumes that two days is reasonable.
This is not a retroactive benefit. So, employees who are already vaccinated do not get additional PTO.
6. Record keeping requirements.
The ETS’s record-keeping requirements are extensive. And, all information about employee vaccination status must be kept confidential. The standard requires employers to
determine the vaccination status of each employee, and also to maintain records of each employee’s vaccination status, preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and maintain a roster of each employee’s vaccination status.
7. What’s the deadline for compliance?
The compliance date is “30 days from the effective date.” In other words, employers must have their policies in place by December 5, 2021.
Employers are required to mandate testing of unvaccinated employees within 60 days of the effective date — or January 4, 2022. Employees who complete their vaccine series by that date do not have to be tested, even if they have not completed the standard two-week waiting period.
8. Fraud issues.
OSHA is not requiring employers to monitor for or detect fraud. But, the ETS preamble makes sure to remind employers and employees that they face 5 years imprisonment if they engage in fraud. Moreover, “[i]f an employer knows that proof submitted by an employee is fraudulent, and even with this knowledge, accepts and maintains the fraudulent proof as a record of compliance with the ETC, it may be subject to the penalties ….”
9. What are the fines if I don’t comply?
The answer: at least $14,000.00. That’s the amount of fines imposed by OSHA for serious safety violations. Last night, the White House arranged a telephone conference between the press and “Senior Administration Officials” but directed the press not to release details until today. A transcript of that call can be found here: Background Press Call on Vaccinations.
When asked about fines, one official said: “So $14,000 per item that would be cited. So if there were multiple items out of the standard that we cited, there would be, you know, multiple penalties that could be issued along with that.”
Some accomplished lawyers think the fine could be $14,000 per unvaccinated employee.
Stay tuned. The Centers for Medicare and Medicaid Services also released a vaccine mandate affecting Medicare and Medicaid health workers today. It can be found here: CMS Vaccine Mandate I hope to have a summary of that rule soon.
Today, the Safer Federal Workforce Task Force released new guidance giving flexibility to federal contractors attempting to enforce President Biden’s vaccine mandate. The new guidance can be found here: Updated Contractor Guidance. I’ll discuss some of the details of the guidance below. But, I also want to draw your attention to the following statement in an article from CNBC:
Senior administration officials made clear that Dec. 8 is not a hard deadline for contractors to have all of their employees fully vaccinated. Instead, contractors must demonstrate they are making a good faith effort to ensure employees are getting vaccinated and have plans in place to ensure masking and social distancing policies are followed in the workplace.
The entire article from CNBC can be found here: Federal Contractors to Get Broad Flexibility. Obviously, a statement from anonymous “senior administration officials” is not perfect, but it provides some indication of the flexibility the administration is willing to give contractors as they struggle to comply with the mandate.
Here are my big takeaways on the new guidance:
1. Contractors will have additional time to work on accommodation requests.
Federal contractors are still struggling with employees requesting medical or religious exemptions from the vaccine mandate. I previous wrote about strategies for dealing with exemption requests here: Handling Religious Exemption Requests. Engaging in a good faith accommodation process takes time. But, there’s a December 8, 2021 deadline on which the mandate will commence for many new or modified federal contracts. The new guidance gives some flexibility to work on accommodation requests:
Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.
In short, contractors can still process exemption requests after December 8.
2. Contractors can go slow in disciplining employees who refuse vaccination.
Many contractors have wondered if they are required to terminate non-vaccinated employees on the December 8 deadline. The new guidance makes clear that each contractor “should determine the appropriate means of enforcement ….”
But, the guidance also says employers should follow their “usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.” The guidance also suggests that contractors can follow the example set by Federal agencies by utilizing “an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance.” That statement strongly suggests that the government will give contractors some period of time to use discipline (short of termination) as a means to obtain compliance with vaccine requirements.
3. This is flexibility, not a “get out of jail free” card.
While the government seems sympathetic to contractors who are encountering difficulty implementing the mandate, the new guidance also makes sure to stress that compliance is mandatory.
Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.
The lesson here: Contracting Officers should work with contractors who are “working in good faith” to comply. But, contract termination is possible if you don’t work in good faith.
4. Who are “affiliates” that must comply with the mandate?
The new guidance also demonstrates that the administration is serious about including the maximum number of people possible within the mandate. At the beginning of the mandate process, I wrote a blog post that noted “indirect” employees would be included in the mandate. (Federal Contractors Must Be Vaccinated) Today’s update makes clear that a “corporate affiliate” of a government contractor can also be caught-up in the mandate.
“[B]usiness concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”
And, if an employee of a covered contractor is performing in the workplace of an “affiliate,” then the affiliate’s workplace is also covered by the mandate: “If any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.”
Moreover, if the workplace is covered, then all affiliate employees in that workplace must be vaccinated or receive an exemption: “An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.”
Stay tuned. This guidance is constantly changing. Moreover, an article just published by the Washington Post says that OSHA’s mandate for employers with 100+ employees will be released this week: OSHA Vaccine Rule Finalized. I will provide my thoughts as soon as I see it.