The pandemic continues to reshape the workplace, and to a certain extent, the rules and regulations that govern workplace expectations. It’s made for a dynamic environment for many large employers waiting months for clarity on mandatory COVID-19 vaccination and testing polices.
They got that clarity on January 25, 2022. That’s when the Occupational Safety and Health Administration (OSHA) announced its withdrawal of its emergency temporary standard (ETS). The ETS would have required private employers with more than 100 workers to develop, implement and enforce a mandatory COVID-19 vaccination and testing policy.1
Ever since OSHA announced the ETS in November 2021, its implementation had been delayed because of legal challenges that took the matter all the way to the U.S. Supreme Court. In fact, OSHA’s ETS withdrawal came less than two weeks after the high court put a hold on the mandate for private employers. The high court, however, did leave in place, for now, a vaccine requirement for health care workers at Medicare- and Medicaid-funded facilities.
Also, in separate legal challenges, federal judges have blocked enforcement of the vaccine mandate for both federal employees and federal contractors. These matters are subject to ongoing legal review, and are therefore, not final.
OSHA noted that while it’s withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, it’s “not withdrawing the ETS to the extent that it serves as a proposed rule.” 2
It’s unclear when OSHA will announce a permanent rule, but there are existing workplace laws that employers should keep in mind as they navigate the new normal in the workplace.
To Vaccinate or Not to Vaccinate
Even in the absence of a federal vaccine mandate, many employers may opt to build vaccine incentives into their return-to-work protocols and policies. Other longstanding federal anti-discrimination laws offer guidance for their vaccination policies.
The Equal Employment Opportunity Commission (EEOC), which enforces antidiscrimination laws in the workplace, has issued guidance for employers to consider on vaccine requirements. Employers must consider reasonable accommodations if employees can’t be vaccinated due a disability or sincerely held religious beliefs unless it creates an undue hardship on the business.
Two federal anti-discrimination laws apply to all government agencies and private employers with 15 or more employees – the ADA and Title VII of the Civil Rights Act of 1964. These laws protect employees seeking an accommodation or vaccine exemption. The ADA addresses accommodation requests due to a disability. The Civil Rights Act prohibits discrimination based on religion, as well as race, color, national origin and sex, including pregnancy. Determining vaccine exemptions for both disability and religious reasons would generally be the responsibility of the employer.
The Hartford’s Chief Medical Officer, Dr. Adam Seidner, explains that one or more of the following medical circumstances might warrant a medical exemption under CDC guidelines. A worker could permanently avoid getting the COVID-19 vaccine if that employee:
- Has a documented history of severe allergic reaction to a component of each currently available COVID-19 vaccine.
- Has a documented history of severe or immediate-type hypersensitivity allergic reaction to a COVID-19 vaccine and separate contraindication to other available formulations.
- Has had a severe allergic reaction after a previous dose or to a component of a COVID-19 vaccine.
- Has had an immediate allergic reaction of any severity after a previous dose or known allergy to a component of a COVID-19 vaccine.
Dr. Seidner also points out that a medical provider could recommend an employee delay getting the vaccine if the employee:
- Is receiving immunosuppressive treatment, which weakens the immune system and is advised by a medical provider to defer vaccination to a later date.
- Has another medical condition and is advised by a medical provider to forgo vaccination or defer to a later date.
- Has had COVID-19 within the last 90 days and can defer to a later date.
- Has been treated with monoclonal antibodies for COVID-19 within 90 days and can defer to a later date.
“Employers need to be respectful of any reason why an employee may want to opt out of getting a vaccine,” Dr. Seidner says. “But it’s important they have the proper procedures and policies in place to address it.”
It’s also important to note that employers have an obligation to protect the confidentiality of employee medical information. COVID-19 test results, temperature screening, an employee’s own statement confirming the illness and documentation or confirmation of COVID-19 vaccination should be treated as confidential information and kept separate from an employee’s personnel file.
Consulting legal counsel is important for matters of compliance, and in the dynamic legal landscape of the pandemic, it is more important than ever. When an employee requests an exemption to a COVID-19 vaccine mandate and is undergoing weekly testing for a medical reason, it’s important to thoroughly review the request to make sure it meets the requirements under the ADA. In some instances, an employer’s leave management partner can provide ADA support on those requests and can help determine whether the request is consistent with the medical documentation that the employee submitted. Some leave management providers may also have vocational specialists available to help identify options and support through the interactive process.
Remote Work, Flexible Schedules and Other ADA Accommodations
The pandemic forced millions of Americans to work remotely and prove to their employers that they could be productive at home. But is remote work a reasonable accommodation under the ADA?
“In order to obtain a medical exemption from a vaccine requirement, there needs to be a medical reason for the accommodation to be approved under ADA,” says Alicia Heine, The Hartford’s ADA Coach. “We have seen work-at-home employees during the pandemic be extremely effective. So, this could be a viable accommodation in many circumstances.”
Other potential accommodations could include flexible or modified work schedules to decrease contact with coworkers, environmental controls such as Plexiglas barriers, masks and other personal protection equipment and social distancing in work areas.
Heine offers some general guidelines for employers to consider under the ADA:
- The accommodation request must be for the employee’s medical condition – not a family member’s.
- Each accommodation request must be evaluated on a case-specific basis.
- A request to work from home should be considered, but it is also appropriate for employers to work with employees as part of the ADA interactive process to explore other reasonable accommodations.
- Consult vocational rehabilitation counselors for possible accommodation options.
- If no reasonable accommodation is available, the employer must be prepared to establish why providing an accommodation would create an undue hardship on the business.
An example of a request to work remotely is the case of an employee who is hearing impaired. After a year of virtual meetings during the pandemic, the employee realized facial expressions and lip reading was easier through the computer than in-person and requested to continue working from home as an ADA accommodation. The employer could consider remote work. However, if working in the office is key, the employer can also investigate other reasonable accommodations, such as clear face masks to be used by co-workers along with amplification equipment during worksite meetings attended by the hearing-impaired employee.
Resources for ADA Accommodations
Employers don’t have to find solutions by themselves.
For the employer addressing the accommodation request from the hearing-impaired individual described above, the Job Accommodation Network (JAN), a nonprofit clearinghouse for workplace accommodations, may be a useful resource for information on mask vendors, as well as other equipment and accommodation needs. JAN maintains resources on a wide range of accommodation strategies, including resources specific to COVID-19, to help employees return to work during the pandemic, whether onsite or at home.
Job coaches and vocational rehabilitation counselors can help employers work with employees to identify accommodation alternatives. Job coaches may be available through an employer’s absence management vendor, state agencies or nonprofit community organizations. JAN can provide information on state vocational rehabilitation agencies.
The Sum of It All
Employee well-being has been a priority throughout the pandemic. It’s essential – and good business – for employers and employees to collaborate on workplace solutions that work for everyone.
Para obtener más información
1, 2 U.S. Department of Labor, Occupational Safety and Health Administration, “COVID-19 Vaccination and Testing: Emergency Temporary Standard: 29 CFR Part 1910”