Some questions about the coming vaxx mandate

Idle speculation as employers await the actual guidance.

As you know, last week President Biden issued Executive Orders and a directive to the Occupational Safety and Health Administration to require many, many employers to require their employees to be vaccinated against COVID-19. The provisions vary depending on whether we are talking about federal government employees, employees of federal contractors, employees of any companies with 100 or more employees, and employees in health care.

Employers with 100 or more employees will have to require their employees to

  • Get vaccinated, or
  • Get tested for COVID once a week . . .  

Er, I believe I'll take the vaccine, please.

. . . or be fired, I guess.

My colleagues have done an excellent job providing the information that is available now, such that it is. If you're a federal contractor, you won't want to miss Cara Crotty's Affirmative Action Alert from last Friday. If you're a regular Joe employer with 100 or more employees, you won't want to miss Bill Principe's bulletin (which also includes a slightly shortened version of Cara's blog post). And if you just want a handle on whether these rules will survive legal scrutiny, Zan Blue is here to help.

Today I'm going to focus on the "100+ employee" provision. All the President did was provide a very general set of goals. At some point, OSHA will be issuing an Emergency Temporary Standard that has more specifics.

While we wait, here are my questions. You may have more. If so, please feel free to leave them in the Comments.

No. 1: Will reasonable accommodations still be allowed? Guidance issued in June by the Equal Employment Opportunity Commission said that it was legal for employers to choose to require their employees to be vaccinated but that employers who do so must make reasonable accommodations for employees with disabilities or with religious objections. If vaccines are required by law, will reasonable accommodations still be required? Will they even be allowed? Will the only legal "accommodation" be weekly COVID testing? 

No. 2: Will the mandate apply to remote workers? Will the weekly testing requirement apply to unvaccinated employees who work from home full-time? Will they be allowed to forgo the COVID testing except for when they have to come into the office?

"I'll have to circle back. Amazon's here with my nasal swabs."

No. 3: Who pays for the weekly COVID tests?
The unvaccinated employee? Not so fast -- that could be illegal because some states require employers to pay or reimburse employees for mandatory medical tests. And, even where it's legal, the cost of weekly COVID tests could send some employees to the poorhouse. Well, then, is it covered under group health insurance? Hmm. Even if it is, what impact would that have on the employer's health care premiums? (Prices vary depending on the type of test performed, but this article indicates that the tests could cost as much as $50 a pop. For a large employer with a lot of vaccination-averse employees, that could get expensive.) If the employer finds weekly COVID tests for unvaccinated employees to be cost-prohibitive, can it simply mandate that employees be vaccinated, or else? 

No. 4: A curse for employers, or a blessing? My first reaction was, A curse, natch. But some employers may be delighted to have the government compel them and their competitors to adopt these tough measures. That way, they can tell their unvaccinated employees, "Sorry -- we don't like it either! Blame it on Biden!"

"You're deflecting the blame to me? No fair. C'mon, man!"

And vaccine-averse employees won't have greener pastures to which to escape . . . unless they can find an employer that is too small to be covered by the mandate. And that isn't in health care. And that doesn't do work for the federal government. Good luck with that.

No. 5: How do we count "100 or more employees"? In determining whether an employer has 100 or more employees, will the government be looking company-wide, or only facility-wide? (My guess is the former, but that's only a guess.) What about subsidiaries and affiliates?

No. 6: Is vaccination-related time off "time worked"? The President's "big picture" says that employees should be paid for time they spend getting vaccinated or recovering from side effects related to the vaccines. Should this be treated as "time worked" for purposes of the Fair Labor Standards Act (or state wage and hour laws), or will it be more like some extra Paid Time Off? If the latter, then maybe not too big a deal. If it's time worked, then it would have to be included in computing overtime for non-exempt employees.


No. 7: Is COVID testing "time worked"? Presumably, time spent undergoing the mandatory weekly COVID tests would be "time worked," too, meaning that unvaccinated employees may be entitled to some overtime pay while their already-vaccinated co-workers are not. And maybe a lot of overtime if the employer doesn't have the resources to do the weekly tests on site, which means it would have to add time spent driving to and from the testing site, waiting in line, getting the paperwork, and going back to work. Is this what they call a "perverse incentive," since the purpose of the requirements is to encourage vaccination?

The pictures of "perverse incentives" were too dirty,
so here is a picture of my cat instead.

No. 8: And another thing . . . While we're on the subject of incentives, does this mean there is no longer any incentive for employers to offer vaccination incentives? Since everybody will be required to be vaccinated anyway? 

No. 9: Will the unions have a fit? According to news reports, some unions favor the mandates, but others do not. Leigh Tyson, co-chair of our Labor Relations Practice Group, says that if vaccines are required by federal law, that could alter employers' obligations to bargain, employees' right to strike, and non-union employees' rights to engage in protected concerted activity related to mandatory vaccination.

No. 10: What Zan said. Is this going to survive a court challenge? It's very hard to predict before we get the details. My best guess is that the more the affected employers receive benefits from the federal government (e.g., federal contractors), the more likely it is that the mandates will stand. One lawsuit has already been filed (how'd he do that, when he doesn't even know what the rules are going to be?), and we expect more to follow.  

Still Image Credits: From flickr, Creative Commons license, Peace Dude (by Michael Saechang) and President Biden (by Gage Skidmore). Xavier the Cat by me.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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