Sarasota, FL (WorkersCompensation.com ) – A new law in Illinois opens the door for private employers to implement COVID-19 vaccine mandates in the workplace. New York now requires all private employers to provide employees with up to four hours of paid leave to receive the vaccine. Florida, on the other hand, adopted a law that provides five options for employees to opt out of vaccine mandates; organizations that don’t comply with the state’s exemption process can be fined up to $50,000 per violation.
The patchwork of laws regarding the coronavirus can create a logistical nightmare for businesses, especially those in multiple jurisdictions. The recent ruling striking down OSHA’s mandate for vaccines or weekly testing of employees for larger employers may well result in a multitude of differing state decisions.
“Given the Supreme Court’s block of the emergency temporary standard (ETS) it’s likely we’ll see an increase in legislation in the coming weeks,” said Katarina Niparko, compliance counsel for the Reed Group. “This may impact private employers and create state-level vaccine mandates. So keep an eye on what’s going on in your state.”
Niparko was among the speakers during a recent webinar produced by the Disability Management Employer Coalition addressing the latest COVID-19-related mandates, exemptions and accommodations and actions employers can take to ensure they are in compliance with many conflicting rules.
Latest State Decisions
Minnesota was the only jurisdiction that had adopted the OSHA ETS before the Supreme Court’s ruling. At least 23 states have already introduced or implemented some form of COVID-19 legislation. Some involve vaccine mandates, testing for the virus or masking requirements – as well as paid leaves to be provided for employees to get the vaccine and/or recover from its side effects.
Some of the ‘pro’ vaccine laws enacted so far include:
- DC – amended its universal paid leave law to create a COVID-19 vaccine leave for employees
- Massachusetts – implemented a law that created a COVID-19 emergency sick leave program
- New Jersey – introduced a law that would require all employers to provide paid sick leave to all employees to enable them to get the vaccine
- Vermont – adopted a law requiring employers to support COVID-19 vaccination by providing reasonable time and paid leave for employees to get the vaccine
“On the flip side are states prohibiting vaccine mandates,” Niparko said. “At least 13 have introduced or passed laws that prohibit vaccine mandates, create robust vaccine exemptions for employees that are disinclined to get vaccinated, and also some laws are creating monetary penalties for entities that mandate vaccines in the workplace or otherwise ‘coerce’ employees to receive the COVID-19 vaccine.”
Some states, for example, are seeking to expand the parameters for the medical and religious exemptions to vaccine mandates, such as medical exemptions for having contracted COVID-19. Florida’s law expanded exemptions to include pregnant women and those expected to be pregnant, despite some research that indicates they are not at risk and, in fact, the vaccine could better protect the baby. Florida also allows exemptions for employees willing to undergo periodic testing or wear personal protective equipment.
The conflicting laws and proposals stem from the wide differences in opinions about the virus and and suggested protective measures. Some see it as routed in a biopsychosocial economic model.
“There is a social component to people’s opinion about the vaccine and whether they should be mandated … the locus of control,” said Robert Dawes, Reed Group’s chief Medical Director. “When I feel like I’m in control of my body or life I have a sense I’m making decisions on my own, vs. some authority is telling me I need to take a vaccine and, therefore, telling me how to manage my body and health.”
Part of the problem, Dawes said is the fact that the science surrounding the virus has evolved extensively in the past two years. Evidence on how the virus is spread, whether a mask is effective, if surfaces should be constantly wiped clean has changed throughout the pandemic.
“The science was evolving so it was dynamic,” Dawes said. “So sometimes people thought we were misleading them, from a clinical perspective.”
The Employer Angle
The situation presents a conundrum for employers faced with state imposed or their own mandates, and employees seeking to avoid them. While there are specific rules about medical and religious exemptions, sometimes it is prudent for employers to go beyond what is allowed.
“The Biden administration guidance is that employers really should consider accommodations for medical conditions regardless of whether the person fits into the Americans with Disabilities Act (ADA) box,” Dawes noted. “Under ADA there are certain checks an employee has to make to be qualified for an ADA exemption. Under Equal Employment Opportunity Commission (EEOC) guidance, getting COVID-19 and being sick for a week or two does not qualify for ADA. But we’re looking at long-haul COVID-19, what’s that mean? There is some ability for employers to make those decisions, but the Biden administration is really saying ‘let’s open that gate a little wider and allow more accommodations and exemptions given the drastic increase in COVID-19 cases.”
Requests for religious exemptions to mandates “can be a very touchy subject,” Niparko said. “We have some guidance from the EEOC.” Factors that could raise a red flag may include:
- The employee is behaving in a way that is ‘markedly inconsistent’ with the professed belief
- If accommodation is a desirable benefit likely sought for a secular, non-religious reason
- If the timing of the request renders it ‘suspect’
- Employers faced with such situations should engage in open, meaningful conversations – the interactive process
“When you become aware for the need for an accommodation or exemption, that triggers the interactive process,” Niparko said. “There are no special words the employee needs to say. What really needs to happen is if there is something an employee says that leads you to believe that an accommodation may be necessary, initiate the interactive process with that employee.”
Having the employee speak with a direct supervisor and/or HR representatives can help get to the root of the issue. It is permissible to request information that supports the request.
“It is appropriate to say, ‘could we have some documentation from your religious leader that explains why the vaccine violates your religious principles,’” Niparko said. “There are some good questions you can ask. Identify the sincerely held belief practice or observance that conflicts with the company policy. Ask the employee to state how the belief conflicts with the vaccination policy … with vaccine mandates ask if, since the age of 18, the person has received any other vaccine. That would be a discrepancy.”
In addition to requesting documentation for both religious and medical exemptions, the speakers listed several other recommendations for employers:
- Have a written policy that outlines a plan of action and allows for an exemption and accommodation process and distribute it to all employees.
- Engage in the interactive process, and maintain communication with the employee even after any accommodation has been implemented
- Question the medical provider who is requesting an exemption. Seek a second opinion if necessary.
- Document everything, but keep any medical information confidential
- Work with third-party administrators or other vendors to assist with vaccine tracking