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On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its regulations requiring employers with 100 or more employees (“Covered Employers”) to ensure that all employees are either fully vaccinated, or provide a negative COVID-19 test result on a weekly basis. On November 6th the Fifth Circuit Court of Appeals halted the implementation of this regulation while it decides the enforceability of this new rule. In the meantime, employers who meet the definition of “Covered Employer,” are left wondering what might be expected of them, when and if the courts allow OSHA to proceed with the implementation of this new rule. This article will highlight a few of the more frequent questions related to the proposed regulations. It will then detail the protocols for handling religious accommodation requests.
“COVERED EMPLOYERS” — EMPLOYERS WITH 100 OR MORE EMPLOYEES
Under the regulation, the calculation of 100 or more employees is based on the total number of employees a company has companywide, regardless of whether they all work in one place or in multiple locations. Also, the regulations require employers to include temporary employees, seasonal employees, and minors in the count.
GENERAL REQUIREMENTS FOR EMPLOYEES
There are two ways for a “covered employer” to comply with the proposed regulations. They can require employees, who do not qualify for a medical or religious exemption, to be fully vaccinated. Alternatively, they can allow employees who choose not to be vaccinated, for whatever reason, to undergo weekly COVID-19 testing and provide the results to the employer.
COMPLIANCE DEADLINES
Under the new regulations, employees who work for a “covered employer” must either be fully vaccinated no later than January 4, 2022, or they must be tested every week from that day forward. “Fully vaccinated,” per the regulation, only occurs after two weeks following receipt of the second dose (in the case of the two-dose vaccination protocols — Pfizer or Moderna — or two weeks after receipt of the single-dose Johnson & Johnson vaccine). In order to prove employees were duly vaccinated, “covered employers” must receive from their employee proof of the vaccination via either the COVID-19 vaccination record card or other approved forms of proof referenced in the regulations, provided those alternative approved forms of proof provide evidence of the name of the vaccine administered, the dates on which the dose(s) were administered, where they were administered, and by whom.
“COVERED EMPLOYERS” MUST HAVE A WRITTEN COVID-19 VACCINE POLICY
The required policy must contain a provision that all employees must be fully vaccinated (unless they are covered by medical or religious accommodations) or that they must be tested no less often than once per week. The policy must detail the process for employees to seek accommodations, and it must also contain language about paid time off for testing and for recovery for any side effects due to receipt of the vaccine. Finally, the policy should also detail what happens to employees that are unwilling to comply with the vaccination/testing programs — e.g., drawdown of paid leave, unpaid leave, termination, etc.
VACCINE TIME PAY
Under OSHA’s new regulations, employers are required to provide employees up to four hours of paid time off to receive each inoculation (not including booster shots) as well as a reasonable period of paid sick time due to any side effects from receipt of the vaccinations. There is also language in the regulations that allows employees to have a reasonable amount of additional time off if the four-hour periods are not enough, though the additional time would not need to be paid. The four-hour periods of paid time off to get the vaccinations apply to cover only actual hours lost during regular working hours. The language does not require that employees get paid for any period of time if they get vaccinated on their own, off-duty hours. While employees may not be required to use any of their paid sick time to cover the work time hours they need off to get vaccinated, the regulations do allow an employer to draw down an employee’s paid sick time (if he or she has any) to recover from any side effects related to their receipt of the vaccine. Do keep in mind, however, that under the Massachusetts Emergency Paid Sick Leave Act, employees may have access to paid qualified leave as well.
KEY ELEMENTS OF THE TESTING PROTOCOLS
Employees who are unvaccinated must undergo a weekly COVID-19 test and must provide a copy of the negative test to the employer no less frequently than every seven days. If an employee does not work on-site every week, he or she must undergo a test within seven days of his or her return to the office and must produce evidence of the negative result to the employer upon his or her return to work. While the regulations provide many different testing options, self-administered tests are prohibited. Additionally, effective December 5, 2021, all unvaccinated employees must begin wearing a mask while indoors at the workplace and while riding in a vehicle with one or more coworkers. As with the vaccination itself, an employee who cannot wear a mask due a medical condition for which he or she needs an accommodation or who cannot wear a mask for religious reasons may ask for an accommodation to be relieved of the mask mandate.
POSITIVE TESTS
Employees who test positive for COVID-19 must be removed from the workplace and may not return to work until they have received a negative test result and have met the Centers for Disease Control’s return-to-work factors enumerated in its “Isolation Guidance.” Negative and positive test results, just like vaccination cards, must be maintained in separate medical files and not in an employee’s regular personnel file.
REPORTING REQUIREMENTS
OSHA requires all employers to notify it within eight hours of learning an employee has died due to COVID-19 or within twenty-four hours of hospitalization.
FINES FOR NONCOMPLIANCE
Employers that do not comply with the OSHA regulations (assuming they actually go into effect) will face potentially hefty fines of up to $13,653 per violation and of over $100,000 for intentional, knowing noncompliance.
HANDLING REQUESTS FOR EXEMPTIONS TO COVID-19 VACCINATION MANDATES
As noted above, OSHA’s vaccination mandate includes both a medical and religious exemption. Given the number of businesses that may need to comply with the vaccination mandates, (should they go into effect), more employers than ever will be faced with employees asking to be excused from the vaccination mandate by requesting a religious exemption or a medical exemption. The remainder of this article will provide guidance to employers that receive exemption requests.
STEPS
The first thing that all “covered employers” must do (assuming the regulation is cleared for implementation) is to notify their employees of the need to be vaccinated and of the logistics regarding getting the vaccine, of the consequences for noncompliance, and of the two possible exemptions — namely, a medical exemption or a religious exemption — of which employees may avail themselves if they believe they should be exempt from complying with the mandate. Employers should designate the person within the organization to whom all requests and information about the exemptions should be directed and submitted.
KEY ELEMENTS OF THE RELIGIOUS EXEMPTION
Pursuant to the Equal Employment Opportunity Commission (EEOC) guidance on requesting religious exemptions, there is no specific language an employee must use when requesting a religious exemption. Rather, all he or she must do is notify the person designated by the employer to receive exemption requests that he or she has a sincerely held religious belief that conflicts with the receipt of the COVID-19 vaccine.
RECEIPT OF THE RELIGIOUS EXEMPTION REQUEST
Upon receipt of the religious exemption request, if an employer has any reason to seek further information or to question the nature of the sincerely held religious belief, it may make further inquiry of the employee.
ANALYSIS OF THE REQUEST
While employers will often give deference to an employee who seeks a religious exemption, EEOC guidelines allow employers to make limited, sufficiently narrow inquiries seeking supporting information to further establish the existence and nature of the religious belief and how it conflicts with the employee’s receipt of the vaccine. Most questions tend to focus on either the religious nature of the conflict or the sincerity of an employee’s beliefs. An employee is obligated to respond to an employer’s reasonable request for additional information and must do so in a timely manner. If an employee neglects to respond to the employer’s request, he or she may be precluded from later challenging the employer’s denial of a religious exemption. Similarly, employers may not disregard or ignore employees’ sincerely held religious beliefs merely because they are unknown or unfamiliar to the employer. That said, sincerely held religious beliefs do not cover objections that are not actually religious but are instead personal, political, or social objections to the vaccine. The difficulty for employers will be differentiating between an employee’s sincerely held religious belief and other nonreligious reasons for objecting to the vaccine.
GRANT OR DENY THE RELIGIOUS EXEMPTION REQUEST
If an employer determines that the employee has not established the existence of a sincerely held religious belief that prevents him or her from being inoculated with the COVID-19 vaccine, the employer will notify the employee that the exemption request has been denied. The employee must then comply with the vaccine mandate or face the employer’s consequences for not being vaccinated.
If an employer determines that the employee has established the existence of a sincerely held religious belief that prevents him or her from receiving the COVID-19 vaccine, the issue then becomes what the accommodation granted should be and whether such accommodation is reasonable under the circumstances.
MOST COMMON ACCOMMODATIONS
The most common accommodations include allowing the employee to work remotely, if possible; allowing the employee to work on-site during different hours when fewer or no other employees are on-site; allowing the employee to work in a different area of the building or worksite; or allowing him or her to submit to COVID-19 testing at regular intervals. There are other possible accommodations. The determination regarding whether an accommodation request is or is not unreasonable is made by the employer, and it is the employer’s prerogative to determine which of the possible reasonable accommodations to grant to an employee.
As a general rule, an accommodation, if granted, is supposed to enable the employee to perform the essential functions of his or her job. Where the accommodation would require the employer to relieve an employee of performing some or several of his or her essential functions of the job, those requests are often per se unreasonable, since the employee, even with the accommodation, would not actually be performing the essential functions of the job.
UNDUE HARDSHIP
Employers that believe it would create an undue hardship to grant employees a religious accommodation exemption from having to be vaccinated may deny an accommodation request. As to what constitutes an undue hardship, courts have found that accommodations that may likely jeopardize that employee’s or other employees’ safety at the workplace have been found to create an undue hardship.
REEVALUATE THE CONTINUING NEED FOR THE EXEMPTION REQUEST
Assuming an accommodation request has been granted due to a sincerely held religious belief, the employer may reevaluate the continuing need for the accommodation request if it begins to create an unreasonable hardship on the employer or if the underlying need for the accommodation no longer exists. FT
