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.
Clink on this link to register: REGISTER FOR FREE VACCINE MANDATE WEBINAR
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 only form 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:
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:
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?
a. Summary
Facilities must develop and implement policies 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.
b. Details
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.
Part-time employees DO count. Independent contractors do not. Here’s an old blog post that I wrote about the dangers of calling employees independent contractors: How Independent are Your Independent Contractors?
“[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.
10. Conclusion
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.”
Conclusion
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.
I am getting swamped with calls wanting to discuss religious objections to vaccine mandates. I’ve written about President Biden’s vaccine mandate here (Mandate Announcement) here (12/8 Deadline) and here (FAR Clause for Vaccine). Government contractors have deadlines for vaccine compliance that are rapidly approaching. Additionally, many private employers are rolling-out vaccine policies in advance of anticipated OSHA requirements. Nevertheless, many employees don’t want to get vaccinated. And, thanks to the internet, I’m seeing a lot of “cut and paste” religious objections to the vaccine.
For the sake of my clients, I’m not going to re-publish those objections. But, many people seem to have the same beliefs regarding vaccines. Presumably, those employees have read that there are two primary, legal avenues for trying to avoid the vaccine: (1) the Americans with Disabilities Act; and, (2) Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination against individuals because of their “sincerely held religious beliefs.” As I understand the literature, there are few medical reasons for avoiding the vaccine. As a result, I am not seeing many requests for ADA accommodations. Instead, presumably because of the subjectivity of whether a belief is “religious” and/or “sincerely held,” I am seeing many more requests for religious accommodation.
At least for federal contractors, the Safer Federal Workforce Task Force has recognized that employees are entitled to religious accommodations: “A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” (The guidance is found here: Guidance for Federal Contractors.) But, when asked to provide details on reviewing religious accommodation requests, the Task Force punted:
Q4: Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance?
A: A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.
So, we know that employers are required to give accommodations. Well, what is the process for giving an accommodation? Generally, there are two steps.
I. DETERMINE IF A RELGIOUS BELIEF IS SINCERELY HELD
Historically, the United States Equal Employment Opportunity Commission has taken a liberal stance on this issue. Here is a link to their guidance on religious discrimination: EEOC: Religious Discrimination. Generally, they don’t want employers second-guessing beliefs:
Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.
The EEOC has not provided any updated guidance on requests for accommodation in relation to vaccine mandates. As a result, employers are left to muddle-through without clear direction. I don’t think there is a “right” or “wrong” way to approach this issue. Instead, I think there is sliding-scale of risk that each employer should review before determining if a belief is sincerely-held:
II. ENGAGE IN THE ACCOMMODATION PROCESS
A sincerely-held religious belief is not a “get out of jail free” card. Employees don’t get to saunter around the workplace, consequence-free, because they have an objection. Instead, Title VII merely requires an accommodation of a sincerely-held belief. For federal contractor employees, unvaccinated employees must be masked in the workplace and in federal facilities. Other accommodations designed to honor a belief, while also protecting co-employees, could include: weekly COVID-19 testing; changing work locations to increase distance from other employees; reassignment to another vacant and available position; telework; unpaid leave; or, a combination of options.
In some circumstances, it might not be possible to accommodate a religious belief. Typically, this occurs where the only accommodation requested or available imposes an “undue hardship” on the employer. The “undue hardship” standard is different from the “undue burden” analysis that sometimes occurs in disability accommodation cases. An undue hardship is one that causes “more than a de minimis cost” to an employer. But, the cost is not just monetary. Instead, an undue hardship can be judged by the general burden on the conduct of an employer’s business. The EEOC’s guidance recognizes that undue hardship can arise where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
When it comes to requests for a religious accommodation, I cannot emphasize the following point enough: GO SLOW. Determine your risk level. Review the applicable facts of each case. Decide if accommodations can be made. And, document, document, document. Obviously, the assistance of a good employment lawyer is invaluable in that process.
Somebody needs to tell the federal government that this is football season. While I was driving to Tuscaloosa for the Alabama-Ole Miss football game, the Department of Defense, FAR Council and GSA issued a FAR deviation clause to assist in enforcement of President Biden’s vaccine mandate. Here are the big takeaways.
We still have received no guidance on the enforcement process for the vaccine mandate. I will keep you updated as a I learn more.
By now, most employers know that President Biden announced a national vaccine mandate for COVID-19. I wrote about his mandate and executive orders on September 9 here: President Biden Implements Vaccine Mandate One of President Biden’s orders directed the Federal Safer Workforce Task Force to develop guidance for federal contractor employees to get vaccinated. Today, the Task Force released that guidance, which can be found here: Guidance for Federal Contractors.
There is a lot to unpack in the guidance. And, to be clear, my practice focuses on employment law. I am working with my partners who specialize in the intricacies of government contracts. We will provide additional interpretations as we digest this material. In the interim, here are the big takeaways.
Again, the foregoing points are just the highlights of the new guidance. Please read the entire guidance carefully. In a shameless plug, I can say that I am conducting a FREE WEBINAR on September 28 at 1:00 PM (CST) with my friend, Helen Holden, who practices employment law with Spencer Fane in Arizona. Helen is a Rock Star in the employment law world. Here is her web page: Helen Holden. Helen is the past Chair, and I am the Current Chair, of the Employment Practices Section of the Federation of Defense and Corporate Counsel. Here’s a link to the FDCC’s web page if you want to learn more about them: FDCC
I can promise that we will be talking in more detail about this guidance. If you would like to attend, please click on this link: FREE VACCINE/MASKING WEBINAR
On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.” A broad outline of President Biden’s plan can be found on the White House web site here: Biden COVID Plan. That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees. After the President’s address, the White House released two Executive Orders. Here’s what we know:
1. FEDERAL CONTRACTOR VACCINE MANDATE
After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Here’s a link to that order: Exec. Order Vaccine Protocols/Contractors. Highlights of the order include:
2. FEDERAL EMPLOYEE VACCINE MANDATE
President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees. That order can be found here: Federal Employee Vaccine Mandate. Here are the highlights:
3. PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees
The Executive Orders do not address a vaccine mandate for private employers. Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c). Under that statute an ETS will become effective immediately when it’s published in the Federal Register. Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.
4. CONCLUSION
In large part, today’s news is: “Hurry up and wait!” We know that the federal government is going to implement a vaccine mandate. But, we don’t know the exact contours of that mandate. We should have more guidance from the Task Force in the near future.
I plan to provide regular updates on this issue. I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues. If you would like for me to include you on that list, please send me an e-mail at: rlockwood@wilmerlee.com
In the last few weeks, COVID-19 cases and hospitalizations have risen with the increase in the Delta variant. As a result, I’ve started receiving more COVID-related questions. Here are some of the most-common questions and potential answers.
1. One of my employees has been diagnosed with COVID. Do I have to provide them with paid leave?
No. In Alabama, the laws mandating paid leave for COVID-related absence have expired. In 2020, Congress passed the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act. Those laws required employers to provide paid leave to employees suffering from COVID or caring for those with COVID. The paid-leave provisions of those Acts ended on December 31, 2020. As a result, employers are not longer required to provide employees with paid leave for COVID-related absences.
Nevertheless, employers can voluntarily provide paid leave and receive tax credits from the Internal Revenue Service. The American Rescue Plan Act was enacted in the Spring and allows employers with fewer than 500 employees to provide paid leave and get a tax credit through September 30, 2021. Here’s the Act IRS fact sheet discussing those credits: IRS Paid Leave Guidance
2. I recently terminated an employee. Am I required to pay their COBRA premiums?
The American Rescue Plan Act also provides a significant benefit to employees who are terminated from employment. From April 1, 2021 to September 30, 2021, employees who suffer a “qualifying event” and lose their health insurance can have their ongoing COBRA insurance premiums paid. A “qualifying event” includes: a reduction in hours (such as reduced hours due to change in a business’s hours of operations; a change from full-time to part-time status; taking of a temporary leave of absence; an individual’s participation in a lawful labor strike, as long as the individual remains an employee at the time that hours are reduced); or, an involuntary
termination of employment (not including a voluntary termination).
Employers are required to pay the cost of the COBRA premiums. But, employers can reduce their payment of federal employment taxes on a dollar-for-dollar basis. Here is the United States Department of Labor’s discussion: DOL COBRA Premium Guidance
3. Alabama has a new law prohibiting disclosure of vaccination status. How does this affect my business?
Alabama Act Number 2021-493 is Alabama’s “COVID Passport” law. For businesses, the law’s most-significant impact is its prohibition on refusing to provide goods or services, or refusing to allow admission, to an individual based on the customer’s immunization status or lack of immunization documentation. Many commentators have noted that the law does not have an enforcement provisions. So, it is unclear what penalties, if any, would be imposed for violating the law. Nevertheless, I generally suggest that businesses should comply with the law.
Alabama Attorney General Steve Marshall has also issued guidance on implementation of the law, which can be found here: Alabama’s Vaccine Law. For purposes of this blog, the most notable portion of that guidance is the recognition that the act only “protects consumers of goods and services and does not address employer-employee relationships. Thus, it cannot be read to prohibit private employers from requiring employees to vaccinate against COVID-19.”