Calfee's Labor and Employment and Workers’ Compensation and OSHA attorneys cover the challenges employers will face as they work to comply with the new federal vaccine mandates.
This session addresses:
- Executive Order 14042 – Federal Contractors and Subcontractors
Speaker: Abbey Kinson Brown - OSHA’S Newly-Issued “Emergency Temporary Standard” for Large Employers
Speakers: David Kaufman and Chris Ward - Responding to Requests for Religious and Medical Accommodations
Speaker: Jason Dejelo - “Best Practices” for Implementation and Compliance
Speaker: Todd Palmer
Video Transcript
Abbey Kinson Brown:
Hi everybody. I'm Abbey Kinson Brown. And welcome to Calfee's webinar, Complying With The New Federal Vaccine Mandates, put on by our Labor and Employment group. We have about a 1 hour 15 minute presentation for you today.
Abbey Kinson Brown:
And on the agenda, first I'll be speaking about the executive order and guidance issued for federal contractors and subcontractors. Then David Kaufman and Chris Ward will speak about OSHA's newly issued Emergency Temporary Standard for large employers. Jason Dejelo will talk about responding to requests for religious and medical accommodations. And then Todd Palmer will finish off with best practices for implementation and compliance.
Abbey Kinson Brown:
All right, so let's jump right in. I'm going to be discussing the executive order. On September 9th the executive order was issued, directing the Safer Federal Workforce Task Force to issue its guidance. Which it then did on September 24th. And that guidance was actually just recently updated on November 10th. But not a lot changed, just one date in fact.
Abbey Kinson Brown:
So what do these two documents actually do? Well, the executive order and the guidance direct executive departments and agencies to include a clause into their contracts that require the government contractors to implement specific vaccination, masking, and social distancing practices for their employees.
Abbey Kinson Brown:
So the first major question, of course, is which contracts are actually covered? And this is going to be an answer in two parts. So here's the first answer. "Covered contracts are contracts and contract-like instruments with the federal government for services; construction, leasehold interest in real property, and contracts in connection with federal property or land related to offering services for federal employees, their dependents, or the general public."
Abbey Kinson Brown:
So that's what it says. And the guidance suggests that it does not apply to other things, so, for example, contracts valued below about $250,000 or subcontractors that provide only products. And it expressly says it does not apply to those. Notably, there is no small business exception for companies with a small number of employees.
Abbey Kinson Brown:
Okay, so that was the first part of my answer. Here's the second part. The reality is, the clause is showing up outside of these covered categories. And here is why. This little gem basically says, "You know how we spent all that time describing what a covered contract is? What we really meant is, hey agencies, go nuts. Just put this clause in as many contracts as you can."
Abbey Kinson Brown:
And from what we have been seeing to date, it appears that agencies are including those mandates in all kinds of federal contracts, regardless of the dollar threshold, regardless of whether the contract covers products only, and regardless of whether it fits any of the other descriptions of what a covered contract should be.
Abbey Kinson Brown:
Here's what the clause actually looks like. I won't read it for you. But basically it simply refers back to the guidance and says the contractor will do everything that's in that guidance. And because it says the contractor shall comply with all guidance, it's also evergreen. So if/when the Task Force publishes updates, such as it did on November 10th, contractors have an obligation to keep up with those updates and comply.
Abbey Kinson Brown:
So what is actually mandated? Once you've seen this clause inserted into your federal contract or a subcontract, and assuming you do agree to accept it rather than lose that contract, what are you actually obligated to do? What kinds of safety measures are actually in this guidance?
Abbey Kinson Brown:
First, there is a mandate that all "covered contractor employees" ... and that's a defined term ... must be fully vaccinated by a certain date. And every time I say must be vaccinated, make sure you remember in your head: unless they are legally entitled to a religious/medical exemption. Which Jason will be speaking about shortly.
Abbey Kinson Brown:
Second, covered contractor workplaces ... and that's a defined term ... have to have all of their employees working at those locations vaccinated, but then they also have to comply with masking and social distancing requirements.
Abbey Kinson Brown:
Third, you have to designate someone to serve in a function, like a COVID-19 safety coordinator ... that's not a defined term, that's my short nickname for it ... at each covered contractor workplace. And then, finally, you have the obligation to flow down the clause to all covered subcontracts.
Abbey Kinson Brown:
We'll start with the big ticket item: vaccination. All covered contractor employees have to be fully vaccinated, and I said by a certain date. So when is that date? This is, again, an answer in two parts. So the updated guidance, that date was recently revised from December 8th to now January 18th. And remember that because the term fully vaccinated means two weeks past that final shot, you'll have to work backwards to determine when compliance with first shots need to happen if your employees are getting one of the two dose vaccines.
Abbey Kinson Brown:
And then the guidance also says after that date of January 18th, all covered contractor employees must be fully vaccinated essentially by the first day of the period of performance of that contract.
Abbey Kinson Brown:
But again, in practice, we're actually seeing agencies demand compliance with this mandate sooner than that in their contracts. And how is this possible? How can they do this? It's because of that same crazy language that we covered on a previous slide that says, "Agencies are also strongly encouraged," and it says, "To incorporate that clause prior to the date upon which the order requires."
Abbey Kinson Brown:
So we just talked about the when of the vaccine mandate. Now let's talk about the who. So who must be vaccinated? The guidance requires vaccination of all "covered contractor employees." And that means any full-time or part-time employee of a covered contractor, working ... and here's the magic words ... on or in connection with a covered contract or working at a covered contractor workplace. And that includes employees of the covered contractors who are not themselves working on or in connection with a covered contract.
Abbey Kinson Brown:
So that's really two groups of employees who fit that definition. They don't need to overlap there. And both of those groups of employees present some real challenges to determining who exactly counts.
Abbey Kinson Brown:
So that first group are the employees working on or in connection with a covered contract. So that may seem like an easy group to identify, but the in connection with is defined very broadly.
Abbey Kinson Brown:
So take a look at this excerpt from the guidance. "Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work connection with a Federal Government contract." So they all count. They need to be vaccinated.
Abbey Kinson Brown:
What about employees who work on or in connection with a covered contract but do so exclusively from their own home? They too must be vaccinated.
Abbey Kinson Brown:
That second group of employees who fit the definition of a covered contractor employee, and therefore must be vaccinated, are employees working at a covered contractor workplace. So that has a two part definition which both must be met, the definition of a covered contractor workplace. It has to be a location controlled by a covered contractor. But That's not explained exactly what that means. And it also has to be a location likely to have at least one employee present, working on or in connection with a covered contract at the time the contract is in place.
Abbey Kinson Brown:
So is it possible to only designate just one floor or one area within a building as a covered contractor workplace? In theory, yes. But it's a pretty vague standard and kind of a tough thing to actually implement in my opinion.
Abbey Kinson Brown:
So the guidance says in order to do that, the employer must be able to "affirmatively determine" that none of its employees performing work for, or in connection with a covered contract will come into contact, basically, with employees who aren't.
Abbey Kinson Brown:
And what does that mean, affirmatively determine? Is instructing certain employees not to visit common areas good enough? Or what about setting up security personnel at entry points into common spaces? How far do you have to go? There's really no answer at this point. There's no explanation in the guidance at all. And the guidance specifically says, basically, make sure you think through and determine that these two groups aren't going to mingle in lobbies, security clearance areas, elevators, stairwells, meeting rooms, even parking garages. So that's a pretty tricky thing to do.
Abbey Kinson Brown:
And another sticky scenario that we've encountered that is kind of like a logical extension of this issue, is that of what we've been calling the traveling covered contractor employee. So if you remember, a covered contractor workplace is defined to include a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present.
Abbey Kinson Brown:
And given that definition, it appears that the presence of just one employee, who's working on or in connection with a covered contract, could turn a workplace that's not obviously related to the functioning of a covered contract into a covered contractor workplace. And consequently, subject all of the employees at this new location to the vaccination, masking, and social distancing mandates.
Abbey Kinson Brown:
So, for example, take a regional manager. Let's say she oversees work performed in connection with a covered federal contract at one location, but then she also overseas work that's clearly not related to a federal contract at one or more different locations. As that regional manager travels to different sites, every new location that she visits would be converted into a covered contractor workplace just by her presence. She steps foot at the new location, and suddenly everyone there needs to be vaccinated and masking. It's like King Midas, but with vaccine mandates instead of gold.
Abbey Kinson Brown:
Okay, second big topic. We've talked about how all employees at a covered contractor workplace have to be vaccinated, but, in addition, the employer has to ensure that all individuals ... and here, that means employees and visitors ... comply with the CDC's masking and physical distancing guidelines.
Abbey Kinson Brown:
And just to note, the CDC's guidelines can and do change. And I'm guessing many of us are probably already pretty familiar with those rules so I'm not going to read this slide to you. But I do want to just highlight that even fully vaccinated people are supposed to be doing indoor masking at work if they are in an area of substantial or high transmission, unless they fit into one of the masking exemptions on the next slide.
Abbey Kinson Brown:
Which, again, I won't read for you as they're pretty self-explanatory. But I will highlight here something that we haven't really run into much, a little bit but not much. It's a little less common. The guidance here does specifically call out the possibility that there could be a bonafide religious or medical exemption for masking, in addition to vaccination. We've been seeing a lot with vaccination and less often requests having to do with masking exemptions.
Abbey Kinson Brown:
Okay. The third big thing that the guidance requires is designation of a COVID-19 Safety Coordinator at covered contractor workplaces. And that person's ... or it could be a team as well ... their responsibilities include: communicating safety protocols with employees and visitors, posting signage related to the protocols, and then also verifying the vaccination documentation of employees.
Abbey Kinson Brown:
And, finally, the last big item that the guidance requires is that all covered contractors and subcontractors flow down the clause to all covered subcontractors below them, until you get to the point where the subcontract is solely for the provision of products.
Abbey Kinson Brown:
So are covered contractors required to flow down the clause to non-covered contracts? The short answer is no. But no surprise here, they are strongly encouraged to do so. So this would be, for example, contracts at your workplace where the subcontractor has personal providing things, like food services or onsite security, grounds-keeping, things of that nature that are not directly related to the federal contract itself.
Abbey Kinson Brown:
And, finally, is there any chance this thing gets overturned? Sure. I mean, yes, there's always a chance. And there is litigation currently pending, challenging this executive order and these mandates in this guidance. But experts are generally in agreement that legal challenges to the contractor vaccine mandate are less likely to be successful than challenges to OSHA's vaccine or test Emergency Temporary Standard for large employers that David and Chris are going to discuss next.
Abbey Kinson Brown:
And the reason for that is contract law. This is basically the federal government making rules for its own contracts; which presumably it has the right to do. And there's the argument that companies could simply decline to enter into those agreements if they want to avoid the rules.
Abbey Kinson Brown:
Obviously, there's still some question. Employees are effected and they don't have the right to refuse the agreement. But there you have it, there's arguments on both sides and we shall see.
Abbey Kinson Brown:
Okay, thank you so much for your time guys. And, with that, I will turn it over to David Kaufman and Chris Ward.
David Kaufman:
Okay. Morning, everyone. You may have heard that there's a new OSHA rule about vaccines. We're going to be talking about that. It's been in the news a lot since it was released to the public on November 4th.
David Kaufman:
Back in September, President Biden issued a directive that all medium and large employers have to require their workers to be fully vaccinated against COVID or get tested every week. About two months later OSHA published their rule on November 4th, it's published in the Federal Registrar on November 5th. So implementation dates stem from that November 5th date.
David Kaufman:
The rule is actually, as it says at the top of this slide here, an Emergency Temporary Standard, ETS, which is a type of regulation that OSHA's authorized to issue that takes effect immediately and addresses what are called grave dangers to workers.
David Kaufman:
The ETS itself goes to great length to describe how it's designed to minimize the risk of contracting COVID at work or spreading it to others at work. And as you may already know, but just to review, the new ETS directs covered employers ... and we're going to talk about that in a second ... to mandate vaccines for their workforce or have workers show a negative test for the virus at least weekly. If employees can't produce a negative test, or if they test positive for COVID, employers must remove them from the workplace, according to the rule.
David Kaufman:
The devil's in the details though. And the first detail that we want to discuss is what's meant by a covered employer. It's what OSHA calls a large business, those with a total of 100 or more employees. But just counting to 100 seems like it would be easy. But it's not, it's a little bit more complicated than that.
David Kaufman:
First, it covers employers who have 100 or more employees at any time the ETS is in effect. What that means is that if you have 105 employees now, but next month you have 95, you're still covered for the entire time the ETS is in effect. On the other hand, if you have 95 employees now and you think you're not covered, but next month you have 105 employees, you're covered, and covered retroactively, covered for the whole time. In other words, you can grow large enough to be covered but you can't shrink out of being covered.
David Kaufman:
Next, importantly, all employees across the country must be counted. This isn't like other employment laws, regulations, where, say, the FMLA, where you count only employees at a certain location for purposes of determining whether they're covered or eligible for leave. All employees, everywhere that you have employees, are counted.
David Kaufman:
Also differently, with regard to this particular rule, part-time employees are counted. It doesn't matter how few hours a week an employee works, if they're an employee they're counted for purposes of this calculation.
David Kaufman:
But important to note there, on the last line of this slide, independent contractors are not counted. Why? Because they're not employees. But lest any of you get a bright idea, "Oh, we'll just transform all of our employees into independent contractors." Not a good idea. Not a good way to get around the ETS. That could certainly leave you subject to penalties from the Department of Labor as well as the IRS. So don't count your independent contractors, but don't make everybody independent contractors so as to try and get around this.
David Kaufman:
I want to talk about a few scenarios as to covered employers, that are specifically discussed in the ETS. First, let's talk about temporary employees. I know a fair amount of you use temporary employees, typically provided by staffing agency. The ETS says that only the agency itself counts those temporary employees. The host employer, the employer where the temps are stationed, does not count them for the purposes of determining if they have 100 or more employees.
David Kaufman:
You should still note that you can be covered if you have more than 100 employees aside from your temporary workers, of course. In other words, having temps reduces your overall employee count. But just having temps isn't itself a get out of jail free card.
David Kaufman:
The second scenario is multi-employer worksites. So it would be, for instance, like a construction site. The construction site isn't an employer itself so the employees aren't grouped together for purposes of counting. Each employer on the site counts only their own employees. So you may have a construction site where some contractors are covered employers and some are not.
David Kaufman:
But for those of you that may be in this sort of situation, remember that you have to count your employees at all worksites across the region, across the country. In other words, if you have, say, 25 employees at each of four worksites, you're still a covered employer even though you don't have 100 or more at any particular worksite.
David Kaufman:
Next, related corporate entities. The ETS, it's clear that related entities can be considered a single employer for purposes of determining whether you have 100 or more employees. The key question, from OSHA's perspective, is whether the entities handle safety matters as a single company.
David Kaufman:
So if two entities have different HR teams, different workplace policies, and therefore address safety matters separately, it might be considered separate entities. But the concept of whether two or more employers are a single entity can get complicated by issues such as whether they have common ownership, common management. Do they share employees? Do they share the same physical space? Are they located in the same building? And some others.
David Kaufman:
So, to be safe, if two or more entities share the same space and they have the same management team and they have the same HR department and workplace policies, it's likely that they'll be found to be a single employer for purposes of this new OSHA rule.
David Kaufman:
And next, I want to briefly address public entities, since I think we have some attendees this morning from public employers. Public employers in Ohio are not covered by the ETS. If a state does not have an OSHA-approved State Plan ... and I can tell you that Ohio does not ... they are not covered. So you don't even have to listen to this part of the seminar anymore, I guess.
David Kaufman:
Now, even when you've determined that you're a covered employer, you've counted all the employees you're supposed to count, you've left out the people you're supposed to leave out, and you have over 100 employees so you're covered by the ETS. Even then there's three types of employees who are exempted from the requirements. Those are employees who work where no other individual is present. This is meant for employees who truly work alone, not just some or most of the time. I think one of the examples they give in the ETS is a scientist who's working alone in a lab. Seems like it might apply to a night shift security guard, someone who works entirely by themselves.
David Kaufman:
The second type of employee that's exempted from these requirements are employees working from home. I think this is self-explanatory and it makes a fair amount of sense. If someone works from home, the employer doesn't really need to concern itself with that employee getting or spreading COVID in the workplace. But these folks are only covered to the extent that they do, in fact, work from home. If they come into the office, some of the time, once a week, they don't give a minimum standard. But if they come into the office every so often, then they aren't exempted. If they work from home all the time, then they are.
David Kaufman:
And then finally, the third type of employee that's exempted here are employees that work exclusively outdoors. Again, I think this makes sense based on what we know about how COVID spreads, outdoors is intrinsically safer. If someone, like a landscaper or construction worker works exclusively outside, then they're exempted from ETS requirements. But again, if they come inside for meetings or things of that nature, they're not exempted anymore. But thankfully, the ETS specifically mentions that if they're coming inside to go to the bathroom, that does not destroy the exemption, which is good. So now that we've discussed which employers and employees are covered by the ETS, turn things over to my colleague, Chris Ward, who will talk about what the ETS specifically requires.
Chris Ward:
Thank you, Dave. As Dave mentioned, we now know who is covered by the OSHA ETS. Now I'm going to walk you through the requirements. What does the ETS require of employers who are covered? Number one on the list is a written vaccination policy. So covered employers have two options. You can establish, implement, and enforce a written mandatory vaccination policy, where all the covered workers are required to get a vaccine. Or option two, establish and implement an alternative policy which requires regular weekly COVID-19 testing and face coverings for all the unvaccinated employees.
Chris Ward:
If you choose option two, the vaccinate and test type option, you're still going to need to follow many of the requirements that follow that may seem to go with the vaccination procedure in particular, when I'm going to talk about the support in terms of time offer recovery that goes with the testing, or I'm sorry, that goes with the vaccination option two. So partial policies or two policies. What I mean here is that OSHA recognizes that some employers may develop and implement a partial policy that only applies to a portion of their workforce.
Chris Ward:
For instance, if you have a diverse workforce where you have some employees in a corporate office, but you also have people in a retail branch, they're all part of your workforce. An employer may decide to have alternative policies dealing with a partial portion of the workforce. For instance, the retail employees that are more front facing with the general public, perhaps the employer decides to have a mandatory vaccination policy while they allow for the testing and masking policy for the corporate employees who are more in the office setting. As long as you comply with either option for those employees, it's fine to have those partial policies.
Chris Ward:
And in some sense, because an employer is going to have, let's say you proceed with a mandatory vaccination policy. You're probably going to have some employees who cannot get the vaccine for medical or health reasons. Because of that you're going to need to have your written policy address the testing and masking policies and procedures as well, unless you believe you can achieve a fully vaccinated workforce. So your written policy is going to be involved and it's going to need to spell out some of these items in particular. And when it comes to the contents of that written policy, I think Todd Palmer later in our discussion here might take a little deeper dive on some of those aspects.
Chris Ward:
Finally, with regard to the written vaccination policy, please address new hires in that policy procedures on how you will determine the vaccination status of that new hire and determine, if unvaccinated or partially vaccinated, the timing of when that employee would need to be fully vaccinated in order to arrive at the facility. You would treat those mostly as similar to those employees that haven't been in the workplace for seven days, that we discussed later. Essentially have a test within the seven days prior to your arrival until you are fully vaccinated.
Chris Ward:
And there is some employer discretion here with regard to how to handle new hires. The language is as soon as practicable, which gives the employer some flexibility for a reasonable time to address this.
Chris Ward:
The second requirement is determination of the vaccination status of the workforce. There's really three categories we're dealing with here. Fully vaccinated employees, defined in the ETS, employees who have received all primary doses of the vaccine plus two weeks after that final primary dose. The word primary is being used to distinguish it from boosters. We're talking fully vaccinated, two weeks after the second shot for Pfizer and Moderna. Two weeks after the Johnson and Johnson shot. Partially vaccinated people would be those individuals who have not taken the second dose, or are not at that two week point after the second dose. And unvaccinated, obviously are those who don't have, or perhaps do not plan to be vaccinated. In order to meet this requirement of employee's vaccination status you need acceptable proof. What I mean by that is because you need to determine it and you need to maintain records of the vaccination status.
Chris Ward:
You can't just have someone verbally tell you, "I am fully vaccinated." They can't just show you their card and then put it back in their wallet and move on. You need a record of it. The ETS spells it out. You can have a record of immunization from a healthcare provider or a pharmacy. You can have a copy of medical records, which document on that record, that there has been vaccination. You can have a copy of the CDC COVID-19 vaccination record card that many of us have received. You can have a copy of immunization record from a public health state tribal information system. And you can have a copy of any other document, as long as it has the person's name, the type of vaccination, the date of vaccinations and the name of the healthcare provider or clinic that administered it.
Chris Ward:
Digital records are okay. Even QR codes in some jurisdictions are being done, and those can be okay, but you can't just keep a copy of the actual QR code. You need to maintain a record of the information that the QR code retrieves when it scanned. And finally, there is an option for those who cannot obtain proof of vaccination, and they do need to try demonstrate some effort to attempt to get that from the place where they got it or the healthcare provider or the pharmacy. There can be an attestation that the employer may accept where a person attests to their vaccination status, attest to the fact that they've lost or otherwise are unable to produce proof. And there's some magic words in the declaration. "I declare that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties." And that attestation again, needs to have their name, the type, the dates, and the person or clinic who administered.
Chris Ward:
So those are all the acceptable proof that the ETS lays out. You need to preserve that acceptable proof for the duration that this ETS is active, the retention is not in the form of years it's while the ETS is active. And the record keeping required here of the vaccination status also requires employers to maintain a roster of each employee's vaccination status, and the four logical categories that they suggest. Although you are free to make a roster however you see fit as long as it contains information regarding who's fully vaccinated, who's partially vaccinated who's unvaccinated because of medical or religious exemption reasons, and who is fully unvaccinated. Again, keep these while the ETS is in effect. The next requirement for the ETS are some forms of employer support, essentially two requirements, reasonable time for vaccination and reasonable time for recovery.
Chris Ward:
Now, Todd Palmer will also take a little bit of a deeper dive on some of these issues when it comes to time off and hours off. But the highlights here, you need to give the employees reasonable time to obtain the vaccination up to four hours paid time at regular pay. It's not just the appointment itself, that four hours may include time registering the paperwork to fill out beforehand. Time spent traveling to and from, but you are not obligated to reimburse transportation costs. Also, there's a reasonable time for recovery support requirement, reasonable time and paid sick leave to recover from the side effects up to two days. This is following any primary vaccination, again not boosters, but primary vaccination series each dose to each employee.
Chris Ward:
Let's get into the testing requirements that the ETS has set forth. You may be asking what I'm going to have to verify tests from employees. What is a COVID-19 test for the purposes of this ETS? It's one that's been approved and authorized by the FDA, one that's administered in accordance with the instructions for that test. Except those tests that are both self administered and self read by the employee. So you can see where this is going. You're able to use a home test, a rapid test as we call them, as the way to achieve the testing requirement here. But it can't be something that is both taken at home, administered by the employee, him or herself, and the result read by him or herself. Somebody else needs to be involved. It either needs to be observed, it needs to be administered by someone else.
Chris Ward:
This can even be through telehealth with the proctor or the employer, as long as it's observed and the result is observed. What kind of test is going to qualify? NAATs tests, not tests you've probably heard these more often referred to as the viral swab, the PCR test, those are acceptable. They take a little bit longer to get the results, but they are acceptable for the testing requirement. As are the antigen tests, which are the most common, the rapid tests that many of us have encountered. Again, as long as it's not self administered and self read, those can be used.
Chris Ward:
Finally, antibody tests are not going to be adequate to meet this requirement because those do not identify current infection. They identify current antibodies, which could come from a prior infection, could come from one of the vaccinations, but it is not coming from current infection. So those aren't going to be adequate. So the testing required every employee who is not fully vaccinated and reports to the office, at least once every seven days to where other individuals are present. And this gets to what Dave was discussing about employees who work alone. You need to be tested every seven days. Those are calendar days, and you need to provide the documentation to the employer of the most recent test result, no later than the seventh days since you provided the last one.
Chris Ward:
There's some discretion for employers on how this testing process is going to work. You can set up testing sites in the office, if you so choose, or you can just allow the employees to independently schedule at point of care locations or work out a telehealth type scenario that we discussed earlier. How they provide the results, whether it's through an online portal that you've set up. If it's just handed to the HR department, emailed to human resources. However, you decide there's some discretion, but it does need to be transmitted. And what does a test result need to contain, it's going to need to have name and some other identifier such as a date of birth, collection date, type of test, the entity that administered it or issued it and the test result itself. The ETS does describe that pooling is acceptable. That's when multiple specimens are tested at once, and if they're all negative then there's been a cost savings and more efficiency.
Chris Ward:
However, if there's a positive result, then going to require additional testing. The cost of testing. Who pays for these tests every week? The ETS does not require employers to pay for this testing. Obviously, if there is some other issue with regard to collective bargaining, you need to pay attention to those out of those requirements outside of this framework, but in terms of ETS, they do not require an employer to pay for these tests. Although they do allow an employer to pay for it, if they so choose or negotiate. And finally, the records of the testing also need to be maintained by the employer. Again, this retention policy is during the duration of the ETS.
Chris Ward:
When there is a positive result, the employer is required to have that person stay away from the workplace. There is a requirement upon the employee to promptly notify, again open to interpretation, but the ETS describes it as soon as practicable before the next shift, before they return to work. It's a temporary removal. You can require that person to work from home or in isolation if work is available. It's not just once you get a positive test, work shuts down if accommodations can be made. But they are not to return to work until they meet the returns criteria. Which many have dealt with before, it's similar to the CDCs guidance on isolation; 10 days have passed since the first appearance of symptoms, the person has gone at least 24 hours without a fever. And the person's other symptoms are improving.
Chris Ward:
Now, the CDC, or I'm sorry, the ETS does permit if you have a positive result from a rapid test. And then you immediately, because of the potential for a false positive, you take an immediate COVID-19 viral test. And that test, if you get a negative result there, you can return to work immediately. You also can get a return to work slip from the doctor. If the doctor has made an independent determination for that particular employee that they can return to work. The sixth requirement of ETS face coverings, which many people are familiar with. So I won't spend much time here. It must be worn when you do the vaccination or test, it must be worn in concert with the weekly testing when indoors, when occupying a vehicle with another person for work. And where there are certain exceptions that we're familiar with, the eating, drinking, security, when you're wearing other respirators and some accommodation and feasibility issues.
Chris Ward:
Finally, some additional requirements under the ETS that employers need to be aware of. There's several pieces of information that need to be supplied to the workforce, all policies and procedures that need to meet the language and literacy levels as any other document you're required to provide to your workers. You need to provide a copy of the CDCs, "Key Things to Know About the COVID-19 Vaccines" document, that's available on the CDCs website, and you need to provide information to the employees, making them aware of anti-retaliation, requirements that employers must follow with regard to this, and also penalties for false statements.
Chris Ward:
The OSHA is not requiring employers here to be the fraud police and to investigate fraud. This is incumbent upon the employees, but they do need to be aware of potential penalties for falsifying their vaccination status. Employers should still follow the OSHA reporting requirements with regard to COVID-19 positive tests when they're work related. And that could be an entire webinar in and of itself. But please keep aware of needing to continue to record positive work related COVID-19 cases, hospitalizations, or deaths. And finally, availability of records. When it comes to this, an employee asks for a certain record, you tend to have an obligation by the end of the next business day to provide that to that employee observing any privacy and confidentiality concerns.
Chris Ward:
Before I turn it back to Dave, let me just note the effective dates in compliance deadlines. We know that this took effect November 5th and that the standard itself indicates that enforcement by OSHA would begin for all portions, other than the actual testing and vaccination compliance, giving the shot deadlines. Those would not be enforced until January 4th. This is a temporary standard. It's six months from issuance before it needs to be reevaluated by OSHA in order to determine whether to make it permanent. But I say all this, subject to Dave's next discussion here with regard to the litigation that's going on now. These are the big picture deadlines and subject to everything else that's going on that you're hearing in the news. We encourage you keep these dates in mind. So with that, I'm going to turn it now back to Dave to just give you the highlights with regard to those specific litigation efforts. Thank you.
David Kaufman:
Thanks, Chris. And we've already gotten a couple of questions on this. So, luckily I guess I'm back to briefly discuss litigation that's been filed with regard to the ETS and there is a lot of it. Most of it was filed by Republican controlled states. I think some counties, business groups, some religious organizations, all of which are challenging the constitutionality of the ETS. Interestingly, there have been a number of suits brought by unions claiming that the ETS doesn't go far enough. For instance, employees of employers that have 99 or less employees, shouldn't they be protected too. But a strange thing about all of this litigation is that it was filed in circuit courts, which are usually the appellate courts for federal lawsuits, without getting into boring civil procedure lecture.
David Kaufman:
Usually a plaintiff files a claim in a trial court, in a federal lawsuit. That's a US district court. And if there's an appeal, it's heard by the circuit courts having jurisdiction over the location where the suit was filed. Here, it's interesting, the statute that gives OSHA the power to issue an ETS, also specifically indicates that lawsuits asking courts review the validity of the ETS are to be filed in the circuit courts themselves. There are 12 circuit courts in the country. There's a typo there, or I said, 13, please ignore. There's the first through the 11th circuits and the DC circuit. When I prepared these slides less than 48 hours ago, lawsuits have been filed in 10 of those 12, looks like all of them have been covered then.
David Kaufman:
So those two missing circuit courts have had lawsuits filed there too. So suits have been filed in every circuit court across the country. The first circuit court to dig into the ETS was the fifth circuit. That circuit court's located in New Orleans. It covers Texas, Louisiana and Mississippi. It's one of the most right wing courts in the country. And I guess it's fair to say they didn't like the ETS at all. They issued a stay, temporarily halting OSHA's implementation of the rule the day after it was published. So, the stay was issued on November 6th then the court ordered additional brief and reaffirmed stay last Friday night on November 12th.
David Kaufman:
What this means is that OSHA's temporarily precluded from enforcing the ETS, as it points out on their website. But that might not mean by much because cases were filed in all 12 circuits and would be impractical to have those cases proceed in all 12 courts at the same time. The cases are going to be and in fact have been consolidated and there was a lottery held on Tuesday afternoon, complete with ping pong balls and everything to determine which of those courts will hear the consolidated case. Each court got one ping pong ball, regardless of how many cases were filed in that circuit court. Seems strange maybe to some, or maybe even all of you, but this is the same multi-district process that they use in a number of product liability cases. So it isn't totally a foreign concept. Looks like we got an old version of slides here. How late breaking news this is, the Sixth Circuit won the lottery on Tuesday afternoon, that's our hometown Circuit located in Cincinnati. And has jurisdiction typically over Michigan, Ohio, Kentucky and Tennessee. They have not issued briefing or hearing dates yet. This has been less than 48 hours since then.
David Kaufman:
To give you a sense of how the Sixth Circuit might address this, there's 16 active judges in the Sixth Circuit, only five of which were appointed by democratic presidents. The other 11 were appointed by George W. Bush and Donald Trump. So you would think that it tends to lean more right, but recent stats say the Sixth Circuit is the circuit with the highest percentage of cases overturned at the Supreme Court. So I'm not sure we can really draw any conclusions about how they'll rule here.
David Kaufman:
When they're deciding the case, the Sixth Circuit can decide to keep the stay that the Fifth Circuit issued. They can modify it or they can just reject it outright and allow the ETS to take effect. And it's possible perhaps even likely that the case will end up in the US Supreme Court, although when that might be and whether the ETS will have already taken effect, I think are still very much up in the air.
David Kaufman:
That being said, the landscape on the ETS can change on a moment's notice. So as Chris said, I pay attention to the news. We'll put out bulletins if things change substantially, and it's a good idea for employers to plan to implement the ETS, regardless of when the Sixth Circuit rules or what they might say. So with that, I'll turn things over to my colleague, Jason Dejelo, who's going to talk about ways in which employees might ask to be excluded from the ETS requirements, asking for a religious or medical accommodation. Jason, take it away.
Jason Dejelo:
Thanks Dave. Can everyone hear me? Can you hear me Dave? All right. Well, good morning. So I'm going to talk about request for medical and religious accommodation. And this is even independent of the OSHA ETS. For the last month and a half or so, I've personally been seeing more and more employees requesting exemptions for stated medical and/or religious reasons, more so for religious reasons. And this has been since the FDA fully approved the Pfizer vaccine in August and more employees began to implement mandatory vaccination policies.
Jason Dejelo:
So what does the ADA and Title VII require? The ADA requires reasonable accommodations to those with a disability, unless doing so would pose an undue hardship on the employer or a direct threat to the health and safety of the workplace. Title VII similarly requires reasonable accommodation to an employee who sincerely held religious belief, conflicts with a work requirement, in this case, a vaccination requirement, unless doing so would pose an undue hardship for the employer.
Jason Dejelo:
And the reason I highlighted these terms is because I'm going to unpack these terms. And the first terms that need to, or the first things that need to be answered after an employee requests an accommodation is for the ADA, does the employee have a valid medical reason? And for Title VII, for religious exemption, does the employee have a sincerely held religious belief for why he or she cannot get vaccinated and therefore needs an accommodation?
Jason Dejelo:
And the quick takeaway here for medical exemptions is that there really aren't really very many valid reasons for a medical exemption under the ADA. With regard to vaccinations, medical exemptions are based on contraindications. And for the COVID vaccines, that list is quite short. It's for severe allergic reaction, for example anaphylaxis, to a component or ingredient of the vaccine or after a previous dose of the vaccine or for unknown diagnosed and diagnosed is the operative term here, allergy to a component of the vaccine. So this doesn't mean that anyone who has a history of any kind of allergies, severe allergies or a history of anaphylaxis is medically unable to get the COVID vaccine.
Jason Dejelo:
So allergies to peanuts or pet dander or pollen, that's irrelevant here. What's important is that the person has to be allergic to a component of the vaccine. But even here, the CDC says that since the ingredients differ between the mRNA vaccines Moderna and Pfizer, and the Johnson & Johnson vaccine, it is possible for a person who can be allergic to an mRNA vaccine to still safely receive the Johnson & Johnson vaccine and vice versa.
Jason Dejelo:
What about other medical conditions? Now for immunocompromised people, even those who maybe severely immunocompromised, in most cases, it's even more strongly recommended for them since they need protection in case they do get infected. But there is a possibility that severely immunocompromised people, for example, cancer patients undergoing chemo, may not mount an immune response. And in those cases, a treating physician or an oncologist in this case may recommend that getting a vaccine be delayed until a later time. In which case, and this is not because there's a risk that'll harm the patient, but that to better ensure that the dose will work as it's supposed to.
Jason Dejelo:
And in that case, a temporary exemption might be appropriate. The same for expectant employees. It's recommended in most, in the vast majority of cases, particularly the mRNA vaccine for people who are pregnant. But if a doctor should recommend waiting until after the baby's birth, for some reason, then a temporary exemption until after the birth and presumably the mother is going to be out on leave for a period of time. Upon returning from leave may be appropriate.
Jason Dejelo:
There's also risks of an association with Guillain-Barre syndrome and a history of thrombosis with regard to, and that's what may lead to blood clots with regard to the Johnson & Johnson vaccine. But in those cases, the alternative vaccine, the mRNA vaccine, Moderna and Pfizer, maybe the recommended accommodation. For those who have had an episode of myocarditis after the first dose of an mRNA vaccine, and this is most prevalent in younger males, 29 and younger, the individual may be exempted from a second dose, or it may be recommended that they take the Johnson & Johnson dose.
Jason Dejelo:
With regard to those who are currently infected, who currently has COVID, they should get a temporary exemption until symptoms are gone and they've completed the isolation criteria. But for those who had past infections or even long COVID symptoms, the vaccine still recommended. So the bottom line is that very few people should be able to claim a true medical exemption. And in any case, what makes medical exemptions easier to administer than say religious exemptions is that employers can and should require employees to provide documentation or a letter from an appropriately qualified treating healthcare provider describing the employee's medical condition, the extent to which the condition conflicts with the vaccination requirement and whether a permanent or temporary exemption is needed. And in most cases, employers can rely on that doctor's recommendation.
Jason Dejelo:
Now with regard to the religious exemption, this is the more difficult issue. And this is one, we request for religious accommodations prior to vaccine mandates are very rare, but employers should expect to have to deal with more and more of these requests should they decide to impose a hard mandate. That is one that doesn't include a choice between vaccination or testing and masking. And this is because it's very hard. Well, the definition of religion is very broad and also it's very hard to prove that a religious belief is not sincerely held.
Jason Dejelo:
And because the definition of religion is very broadly defined as I've explained, I gave some examples there, it'll be difficult for employers to challenge that an employee's request is not based on a religious belief more often than not. And here I do want to point out because this is a point of confusion for a lot of employers, even if the employee's faith tradition does not explicitly prohibit vaccinations and very few religions do.
Jason Dejelo:
For example, even though the leadership of many major organized religions have publicly stated that it is not against such religion to get the COVID vaccine and many have even encouraged vaccination as being consistent with the teachings of the religion, an employee may still have a valid request for religious exemption based on his or her personal sincerely held belief so long as that belief is still rooted in religion.
Jason Dejelo:
So one of the most common examples is someone who is, for religious reasons, is opposed to abortion and is refusing to get the vaccine because the vaccines have either some part of the production or testing of the vaccines have used fetal cell lines derived from fetal cells of aborted fetuses back in the 1960s and 70s. And even though, for example, Pope Francis and the Vatican says that connection to the abortion is very remote, there's no moral issue with getting any the vaccines. And even though the Vatican themselves are requiring vaccination and are distributing the Pfizer vaccine, that person's opposition based on their opposition to abortion. And perhaps they take the position that it's my belief that I won't cooperate even remotely in any abortion. And therefore I cannot in good conscience get a vaccine. That would constitute a sincerely, well, a religious belief, perhaps not sincerely held. I'll talk about that later.
Jason Dejelo:
But we do also know what doesn't qualify as a religious belief. And here, this is why it's important to have a form that requires employees to provide a written narrative in his or her own words as to the nature of the religious belief. Describe how it is sincerely held and why it conflicts with the vaccination requirement. Because sometimes the employer might volunteer information that might lead one to reasonably conclude that the objection to vaccination is not based on religion. For example, if they make references to distrusting the government or the pharmaceutical industry, or vague references that to constitutional rights, if they make political references, if they say they have concerns about vaccine safety or toxicity or efficacy, those types of statements are not religious based.
Jason Dejelo:
So let's say the employee's data belief is religious. Then the next question would still be whether the religious belief is in fact sincerely held by the employee? And this is largely a matter of individual credibility. And the EOC has guidance states that employers should ordinarily assume that a person's religious accommodation request is based on sincerely held religious belief. And courts also, typically with very few exceptions will take a hands off approach when it comes to evaluating whether a belief is religious or sincerely held. And when there are doubts, generally courts will find that they are sincerely held religious beliefs. So it is hard to effectively challenge whether a particular belief is sincerely held.
Jason Dejelo:
So employers should be careful not to just summarily deny an exemption request right away, because the employer doesn't believe the employee. The better approach is to suspend your disbelief, at least at the first instance, start off with a presumption that the request is valid, have the employee provide a written narrative in his or her own words. And if after that, you have any good faith objective basis to doubt that the employees is sincere or to question that the employee's belief is actually religious in nature, then you should request additional supporting information.
Jason Dejelo:
So what type of factors may be considered that would justify requesting additional information? Did the employee act in an inconsistent manner with the profess belief? For example, if the employee says his or her religion prohibits piercing the skin, but the employee has gotten a flu shot every year or is covered in tattoos. If the employee says that his or her religious belief is that my body is a temple of the holy spirit, which is common, but that employee is also a chain smoker.
Jason Dejelo:
Another factor is if the accommodations sought is for a particularly desirable benefit, likely to be sought for non-religious reasons. I mean, one example is if the employee previously stated that he or she just wants to continue working from home for childcare reasons, and then submits a religious exemption request suggesting teleworking as an accommodation. If the timing of the request is suspect, if every prior statement made to the employer about not wanting to get vaccinated was because of vaccine hesitancy or concerns about the safety of a new vaccine or a view that people should not be forced to be vaccinated, and there was no mention of religion, then I think you can follow up with additional questions.
Jason Dejelo:
There's also like canned letters that employees are getting on the internet from organizations that are either non-religious or wholly opposed to vaccination or vaccine mandates for political reasons. Here, I think you can ask more questions and just recognize that it's difficult to challenge a belief based on the question that it's sincerely held. I would only do so in very clear cases, if there is a question I think you should lean towards accepting the explanation.
Jason Dejelo:
So one thing I want to say about direct threat, this is for medical exemption. This is a very high standard. Some might say, well, now it is a direct threat, it's pretty obvious, but it has to be a significant risk of substantial harm to the health or safety of the employee or others, and this is important, that cannot be eliminated or reduced by reasonable accommodation without imposing an undue hardship on the employer. And I think that if an employer has been allowing unvaccinated employees to come to the workplace, that very well may cut against a position that those employees now pose a direct threat if they remain unvaccinated.
Jason Dejelo:
I also think that OSHA's ETS and it's position on masking and weekly testing is sufficient to mitigate against any grave danger would also cut against any argument that masking that weekly testing is not sufficient to reduce a direct threat to health and safety in the workplace. So what should be considered is there an undue hardship? And under the ADA just know that this is a high burden, significant difficulty or expense, and oftentimes financial costs alone usually won't be enough to meet this undue hardship standard under the ADA.
Jason Dejelo:
Now for religious exemption, the standard is much, much lower. It's more than a de minimus cost or burden on the employer or its operations minimal cost. And here, I think employers will have more flexibility to deny a religious accommodation under this lower standard. And in fact, I think an employer probably has a better case for arguing undue hardship under the standard than it would disputing a sincerity of an employee's religious beliefs. Although you can't be speculative, you should have some objective information about the undue hardship. And this undue hardship can be an impairment or compromise of safety in the workplace. And this is again, a lot lower threshold than the direct threat standard under the ADA.
Jason Dejelo:
So what are the possible accommodations that can be made? And this applies for either religious or disability. I think employers, it's clear that they can require employees who are unvaccinated to comply with additional safety requirements to mitigate against safety risks. And this can be a layered approach, continued masking, social distancing, temperatures or symptom screening, periodic testing, and it can be at least weekly. It could also be more often. There's reassignment to other work areas, continued telework, reassignment to another vacant position, that's one of the last resorts.
Jason Dejelo:
One thing I will say is be careful about unpaid leave of absence. Definitely not indefinite leave, but if you, for example, you know in a couple weeks, you'll have 98% of your workforce vaccinated, then perhaps, providing a temporary two week leave of absence and allowing the employee to use available PTO during the time could be a reasonable accommodation.
Jason Dejelo:
Also remember that you don't need to provide the specific accommodation requested by the employee. The employer has a right to choose among alternative effective accommodations and always reserve the right to reevaluate and modify the terms of accommodation if things get better. If they don't improve, also you can revise it, should it prove to pose an undo hardship to the business in practice. The one question I had about testing is who pays for testing if you provide it as part of a medical or religious accommodation? And OSHA didn't really take a position here, but the first thing I would recommend is checking with your insurance carrier to see if they cover the cost of testing. You can also direct employees to where they can obtain free testing, and if free testing isn't feasible, then I think under the ADA, employers bear the expense of providing reasonable accommodations, especially since the definition of undue hardship is significant difficulty or expense.
Jason Dejelo:
Now under Title VII, I do think there's a potential argument that can be made that paying for tests every week could be more than a de minimus cost on the employer, but it could be likely that the cost of testing should be paid in situations of medical and religious accommodation. With regard to the time spent for testing, that's an FLSA issue. If it's required during normal working hours, the DOLs made clear that that's compensable. Outside of normal working hours, that still is an open question, and it could depend on how much the employer's dictating when the testing can be done.
Jason Dejelo:
If the employer says you can take the test any time and you just require proof of a negative result, then perhaps the cost might be shifted to the employees. Skip over this. And I think the best practice is the pretty self-explanatory. I think if the accommodation process is handled appropriately and there is a back and forth process, that'll go a long way toward avoiding problems with the employee and also avoiding potential claims, costs and legal exposure. So with that, I'm going to send it over to Todd.
Todd Palmer:
Thank you, Jason. Good morning all, thank you for your attendance with us this morning. I've noticed as the speakers before me have given their presentations, we're getting a lot of very good and in some cases, very complex questions on the Q%A. And we absolutely welcome that of course. But I don't think we'll be able to answer all of your questions, especially in just by the quick 140 characters were allowed in a text. So that's a long-winded way of saying we will get back to you on your questions. And if you have posted your question as anonymous, if you wouldn't mind, please go back and add your name to that question, because that will allow us to be able to capture who you are.
Todd Palmer:
Well, my task this morning is to kind of bat clean up and talk about some best practices. And indeed, there have been some comments on the Q%A, or maybe on the chat about a statement posted on the OSHA website earlier this week. As Dave pointed out, I think it was last Friday, the Fifth Circuit kind of continued its stay of the OSHA ETS. And I think on Monday or Tuesday of this week, OSHA put up on its website, a statement that it has suspended its activities related to the implementation and enforcement of the ETS, pending future developments in the litigation. I would suggest to all of you that you should not be suspending your activities related to implementation and enforcement.
Todd Palmer:
For the simple reason that these injunction cases can move very quickly. Actually, I pity the court personnel at the Sixth Circuit, because they're probably going to be working all through the Thanksgiving holiday on this. But things can move very quickly and change very fast. And so, no one should ignore taking some of the important preparation steps for compliance that I'm going to discuss here in my presentation. And one of the first action items that employers need to be doing is starting the process of creating a written vaccination policy. And the first step in doing that is really determining which mandate you are subject to. If you're the right type of federal contractor, you may be covered by Executive Order 14042.
Todd Palmer:
If you are a Medicare, or Medicaid provider or supplier in one of 15 different categories governed by those laws, you may be subject to this thing called the CMS Omnibus Staff Vaccination Rule. CMS is the Centers for Medicare & Medicaid Services. They have issued a vaccine mandate for employees of Medicare and Medicaid providers. And then lastly, of course is the OSHA ETS, which as you know applies to employers with 100 or more employees. Well, any single employer could potentially be subject to one, two or all three of these mandates. So that leads to the question of which agency guidance trumps, which agency guidance. And the different mandates speak to that.
Todd Palmer:
So the executive order, the one covering federal contractors, there's commentary in the Q&A and on that, that covered contractors must comply with that guidance regardless of whether they are covered by the ETS. So in other words, the executive order is primary. For CMS covered employers, the CMS rule is primary. But if you're not covered by that CMS rule, you might also then be subject to the executive order or this thing called the OSHA Healthcare ETS. That's different than the current OSHA ETS that we've been discussing this morning. This OSHA Healthcare ETS was issued by the agency back in June of this year. And again, it applies in the healthcare setting.
Todd Palmer:
Well, before you put pen to paper and start drafting your vaccination policy there are some kind of important practice and policy considerations to take into account. And the first is if you're an employer under the OSHA ETS, you want to decide, as I call it, which pathway you're going to follow. Because remember the ETS permits kind of a twin option of you can be vaccine only, in other words get the shot or else. But as an alternative ETS covered employers can offer the requirement of mandatory vaccination or being subject to the weekly testing and the face covering requirements. That's an important decision to make before drafting your policy, because it's going to drive a lot of the content of the policy.
Todd Palmer:
But another thing to do is consider your workforce. With your employees, what's their interaction with the general public and do they work in close proximity to each other? In other words, that's trying to really assess the risk of their on the job exposure to COVID-19. A third thing to consider, and I know this is a powder keg is attitude towards COVID-19 and vaccination. As probably all of you have discovered, people have very strong opinions about mandatory vaccination. And as you sit down to write a policy and make some of those choices it's certainly worth considering how you think your employees and your workforce is going to react.
Todd Palmer:
Another consideration is the availability and distribution of vaccines in your area. Is it easy to get the shot locally? If so, a lot of employers are just telling employees, "Hey you're own to get it. Because it's easily done, go out there and get it." Other localities may not be as easy to find or there might be other reasons why the employer might wish to provide the shots on-site, like through an on-site vaccine clinic that's run by a third party that specializes in these things. And then a final consideration, and this is for the ETS covered employers is understanding what the ETS calls, the employer's support obligations. That's the pay for the time to receive the vaccine and also paid for a reasonable amount of time off to recover.
Todd Palmer:
Depending on size of the workforce and what those potential support obligation costs might run, it might be more cost effective for an employer to decide to host its own on-site clinic. Well, once you do start drafting your policy there's some key contents that really should be included in any policy. And going back to this concept of there being three mandates. The OSHA ETS and the CMS rules clearly require a written policy. The executive order, it's not clear that a written policy is required, but it's certainly a best practice. And especially when the executive order gets into its discussion of the face cover mandates as well as the appointment of kind of a COVID tsar. There's a lot in the executive order that suggests the wisdom of a written policy.
Todd Palmer:
And so first element of any written policy is statement of purpose, why we're doing this. And quite frankly, that can be short. The why we're doing this could be as brief as the government is telling us to do it. Obviously, probably in something a little more flowery than that. But a second point to address is the coverage of the policy, who's covered and who's not. Under all three of the mandates, the coverage is designed to be very broad. All three mandates are really trying to capture all or darn near all of your employees. But importantly, all three of the mandates permit these exceptions, forks for whom the vaccine is medically contraindicated, as well as the reasonable accommodation for disability and religious practice.
Todd Palmer:
The next element of your policy should be a statement of what the policy requires. And here again, it's going to provide for mandatory vaccination, especially if you're under the executive order or the CMS rules. But in the case of employers covered by the OSHA ETS, again, there's that second pathway of the vaccination or weekly testing and the face covering. And by the way, the OSHA ETS is the only one of the three mandates that permits that either or, that alternative pathway. The next item your policy should address is proof of vaccine status and what counts as acceptable proof. And I know Chris and Dave have covered that. And so I won't belabor that now. Your policy then should also discuss, at least if you're an ETS covered employer, this concept of the support for vaccination.
Todd Palmer:
And that is the four hours of paid time to get the shot, at least if the employee gets the shot during regular work hours. And then with respect to side effects, the up to two work days of paid sick leave or PTO after each dose for purposes of recovery. The next element of a good policy is going to address the need for the weekly COVID testing. Again, this is if you're subject to the OSHA ETS, and you've taken the second pathway. And as we've already discussed that testing is every seven days with documentation of the requirements, as well as... And this is something your policy should address is the cost of testing and who will pay for that. And again, the OSHA ETS is clear that employers are not required to pay.
Todd Palmer:
Then additionally, your policy should address face covering rules. Certainly for ETS covered employers who follow the alternative pathway, this is something that should be addressed. But the face covering rules also apply to employees who are subject to reasonable accommodation. So the policy should address that. Likewise, even under the executive order and the CMS rules which require mandatory vaccination period, there's no alternative pathway. But there are, of course, or there may be employees subject to reasonable accommodation under those guidances. And additionally, even under the executive order, fully vaccinated employees can be required to wear a mask in the workplace in areas of high transmission.
Todd Palmer:
So these are all things that should be referenced in your policy with the language appropriate to the sort of guidance that you are subject to. Some additional items that should be in any policy is the kind of procedure for notification of testing positive for COVID-19 and removal from work. These are things that should definitely be spelled out in the policy. Likewise, your policy should remind employees of the confidentiality and privacy with which vaccine records and test results will be handled. And then lastly, and maybe one of the biggest policy choices in drafting your policy is some statement of consequences. Whether you were going mandatory vaccine only, or the alternative pathway offered by the ETS, your policy should address what happens to those who don't comply.
Todd Palmer:
And that should be... One caveat is don't comply, but also were not subject to reasonable accommodation based on disability or religion. The options would seem to include termination from employment, or perhaps placing someone on unpaid leave, or perhaps considering kind of exclusive work from home arrangement. Those are kind of policy decisions for you as employers to make. And just one quick note, employers who have a union, you will certainly have an obligation to bargain with the union over the policy, and especially this concept of what happens to those who don't comply. Most unions are going to probably have a very eager interest in that topic. In terms of sample policies, there's certainly a lot of things floating around on the internet. But I've got to tell you, the OSHA website is as good of a starting point as any to find a good policy.
Todd Palmer:
And on its website, OSHA offers samples of policies under both path pathways. The first is the mandatory vaccine only and the second one is the alternative pathway. In terms of proof of vaccine status and record keeping, I mean, now is the time to start doing that. Again, the OSHA ETS may be stayed but I think employers are well advised to plan for its existence. And I'm not going to cover this as Chris has covered that. I would point out that the item of the attestation by employees, that's an option that's available only under the ETS both under the executive order and the CMS rules. This "I can't find my vaccination card, but here I swear that it happened." That's not acceptable under OSHA, I'm sorry, under the executive order in CMS.
Todd Palmer:
Likewise, as Chris pointed out, a digital photo, digital records are acceptable. Additionally, there's no need for HR to reinvent the wheel. If you are an employer who months ago gathered proof of fully the vaccinated status from your employees, that's sufficient. You don't have to go back and re-get that information from your employees. And of course, as we've discussed kind of throughout the day, that must be kept confidential. The other thing to consider, and I've touched upon this already is again what to do with the non-compliant. In other words, employees who are not subject to an accommodation based on disability or religion, or being medically contraindicated for the vaccine.
Todd Palmer:
It's interesting, all of the mandates clearly bar the non-compliant from the workplace but they don't spell out what that really means in terms of does that mean the employee gets terminated or put on unpaid leave or exclusive work from home? The government as they so often do, they leave those hard choices up to you, the employer. But again, if you're an employer with a union, don't forget that there's a bargaining obligation there. And to that end, earlier this week, I'm sorry, it was I guess, yeah, it was the 10th, it was last week. The National Labor Relations Board, I guess they felt like they were being left out of the party. So they issued a memorandum reminding employers of frankly, what I think employers with unions already knew, which is that your COVID vaccination policy under the OSHA ETS, as well as these other mandates is a mandatory subject for bargaining.
Todd Palmer:
With that, that concludes my presentation. And indeed our entire topic for today. Thank you for your patience with us I know we have run long. In some ways it's a massive topic and we probably could have done about three more hours on this, but we've tried to condense this down into as short a time as we could. So again, I urge you, if you had questions and we've not answered them, you can put them on the Q%A. Or likewise, you can reach out to any one of us. And our contact information is here. So, I believe I end this whole shebang. And so again, thank you for your attendance, and your wrapped attention and your good questions. And have a good day. Thank you.