With all of the ongoing changes businesses are faced with, one of the most pressing is how to manage the issue of COVID, vaccinations and testing. This article will provide answers to the many questions being asked by employers today:
- Who will be covered under the federal contractor mandate?
- Will remote employees be covered by the ETS/OSHA Standard for 100 or more employees?
- How will my business address our employee's privacy concerns and isn't vaccination status covered by HIPPA, anyways?
- But isn't my asking an employee about their vaccination status covered under the Americans with Disabilities Act (ADA)?
- What if my employee requests an exemption from the vaccination based on a disability-related status, medical status, or a sincerely held religious belief?
- Will my employees be required to submit proof of vaccination, like a vaccination card or other proof that they have been vaccinated?
On September 9, the Biden Administration announced that the Occupational Health and Safety Administration (OSHA) would soon publish an Emergency Temporary Standard (ETS). This will require all employers with at least 100 employees to mandate that employees either be vaccinated or submit to a weekly test for Covid (“vaccinate-or-test”), along with establishing policies consistent with the ETS standard.
Under Section 6(c) of the OSH Act of 1970, OSHA has the authority to issue an ETS where it determines that “employees are exposed to grave danger” and “that such emergency standard is necessary to protect employees.” OSHA must clear a higher hurdle in drafting the ETS, as there must be a “grave danger” and not merely a “significant risk,” and the measures put in place must be “necessary” and not merely “reasonably necessary or appropriate.”
In order to make the ETS permanent, the OSH Act of 1970 requires OSHA to engage in a public rulemaking process and to make it possible for the public to comment on the proposed rule. A previous ETS, issued primarily for healthcare workers on June 21, was set to expire at the end of 2021. In spite of ongoing pressure from labor and other groups to make the ETS permanent and to remove all reference to guidance issued by the Centers for Disease Control (CDC), all indications were that OSHA was leaning towards letting it expire.
In addition to the ETS, the Administration also announced on September 9th that all federal employees and contractors would be subject to a mandatory vaccination regulation, “subject to such exceptions as required by law.”
In its Executive Order, the Administration specified it would expect the newly created Safer Federal Workforce Task Force (SFWTF) to issue guidance by September 16 as to implementation of the federal employee requirement, with OSHA set to issue the ETS in late September. In response, the Governors of more than twenty-five States, as well as private employers, immediately announced that they will challenge the mandates in court.
On September 24, 2021, the SFWTF provided an additional 14-page guidance document which you can view here.
The most recent guidance states all Federal Executive Branch employees must be fully vaccinated, “except in limited circumstances where an employee is legally entitled to a reasonable accommodation.” The guidance stated the agencies must take steps to ensure that employees are fully vaccinated by no later than December 8, 2021.
As we await the guidance documents and the ETS from OSHA, along with preparing to navigate the results of any legal actions, employers can prepare by addressing several questions:
Who will be covered under the federal contractor mandate?
The rules would cover any new contract, including a new solicitation, extension, or renewal or exercise of an option, if it is:
- A procurement contract for services, construction or a leasehold in real property;
- A contract covered by the Service Contract Act (SCA)
- A contract for concessions, including concessions excluded generally under the SCA, or
- A contract in connection with federal property or lands offering services for federal employees, dependents, or the general public
The federal contractor provisions would not cover:
- Indian Tribe contracts or contract-like instruments
- Those with a value equal to or less than the FAR simplified acquisition threshold
- Agreements involving employees performing work outside the U.S.
- Subcontracts solely for the provision of products
- Contracts for manufacturing that are covered under the Walsh-Healey Act
Will remote employees be covered by the ETS/OSHA Standard for 100 or more employees?
The ETS must specifically mention remote employees, or they will most likely not be covered. OSHA typically has not addressed safety issues for employees who are working from home. Nor would any employee working at home typically pose or be subject to any threat of “grave danger” in connection with the workplace.
However, it remains to be seen whether the ETS will address any of these issues, not to mention how the ETS would address compliance or perform on-site inspections to obtain enforcement of the rule if it applies to remote workers.
How will my business address our employee’s privacy concerns and isn’t vaccination status covered by HIPAA, anyways?
The Health Insurance Portability and Accountability Act (HIPAA) would normally cover such information as Protected Health Information (PHI), but only for “HIPAA Covered Entities.” Vaccination status, and thus whether an individual has been vaccinated for Covid, falls under the “provision of care” classification of health information.
While the HIPAA rule normally prevents the disclosure of such information unless the disclosure is for the purpose of treatment, payment, or healthcare operations, most employers will not be considered to be “HIPAA Covered Entities” under the rule. Only health care providers, health plans, and healthcare clearinghouses are covered under the rule, along with their business associates. Questions about whether an employer is covered under the HIPAA rule should be addressed individually with each business.
But isn’t my asking an employee about their vaccination status covered under the Americans with Disabilities Act (ADA)?
The Equal Opportunity in Employment Commission (EEOC) has issued guidance to employers who are covered under the various anti-discrimination laws and has stated the question of whether an employee is vaccinated, by itself, would not violate the ADA. However, employers should take note that any “follow up” questions related to vaccination status may or may not violated the law.
“There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
“However,” continued the EEOC, “subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
Employers should handle this information in accordance with other applicable privacy laws. Best practices would dictate that employers keep this information protected against disclosure to other employees or those without a “need to know.” They should also protect the information from unauthorized disclosure and misuse.
Generally, the information should not be used to determine employee benefits, position, or other uses that are not relevant. As several states’ laws have evolved or are evolving over these types of issues, it is important for each employer to check the individual privacy laws of the state where they are doing business.
What if my employee requests an exemption from vaccination based on a disability-related status, medical status, or a sincerely held religious belief?
Employers should be ready to process such requests, including the request to be exempt from weekly testing for Covid, in accordance with applicable federal and state laws. The requests also should be considered in a neutral, non-discriminatory manner.
The Civil Rights Act of 1964 might require employers to provide reasonable accommodations for employees who object to vaccination on the basis of sincerely held religious beliefs. The U.S. Supreme Court has most recently indicated that a sincerely held religious belief does not necessarily have to be in connection with an organized religion, or any religion. One case considered “veganism” to be enough of a sincerely held religious belief to trigger a reasonable accommodation to a health mandate.
Likewise, employers must consider any request for an accommodation due to a medical condition. Just as it is the case that employers may request that any medical condition be documented by the employee’s physician when the reason for the request is not known or obvious, an employer is not required to request this type of documentation to accommodate a request. Employers may choose to require that an employee produce physician or other health care provider documentation in order to substantiate any request for accommodation based on a medical condition.
Will my employees be required to submit proof of vaccination, like a vaccination card or other proof that they have been vaccinated?
At this time, it is unknown whether the new OSHA standard will require each covered employer to collect copies of vaccination cards or other official proof that they have received the shot. However, it is likely that either a vaccination card or a sworn attestation completed by the employee would be acceptable proof of compliance.
Many employees who were vaccinated in the early days when the vaccination first became available may not be in possession of their paper cards. Employers will likely be able to streamline the process, if they choose, by accepting written attestation forms from those employees who are not requesting a medical or religious accommodation.
If the federal government decides that it will require employers to verify vaccination cards, with no other acceptable form of verification of having received a vaccination for Covid, this may result in additional burdens for employers with respect to record-keeping. With the new guidance from the SFWTF published on September 24, it appears that federal contractors must require their employees to produce official proof of vaccination, thought the proof may be accepted as an electronic document.
Further updates will be provided as they become available. If they have not done so already, employers should begin to think about gathering the forms they will need to process verifications, attestations, and requests for exemptions. Employers should also begin to consider the method by which they will process the information and respond to employee requests, including who will be responsible for creating and maintaining these records, and what policy considerations will need to be addressed both formally and informally with their employees.
Pickrel, Schaeffer, and Ebeling looks forward to assisting you further as more information is made available regarding these proposed requirements, and to assisting you with determining the best way for your particular organization to respond to the forthcoming vaccination and testing mandates. We will also provide employers with guidance for implementation, and are available to address any questions that you may have.