By Randall Sutton, Partner – Employment Law & Litigation Practice Group
It can be confusing to track the many different governmental vaccine mandates floating around right now, especially given the flurry of challenges asserted in the courts. With or without a federal mandate, many employers nationwide are considering whether to impose a full or partial vaccine mandate on their own workforce. With the approaching omicron variant and the widespread availability of vaccine boosters, this issue is once again at the forefront.
First, let’s talk about each of the federal governmental mandates and where each one stands. Then, I’ll go over the rights and obstacles private employers face when deciding whether to impose their own vaccine mandate. READ MORE
Nationwide Vaccine Mandate on Employers with 100+ Employees – Status: On Hold
You will recall that in November, President Biden through Federal OSHA issued a mandate requiring vaccination or weekly testing for all employers with 100+ employees. The order was issued as an Emergency Temporary Standard (“ETS”) based on OSHA finding that COVID-19 poses a “grave danger” and therefore was authorized to issue the emergency rule. As you have likely heard, a federal appeals court issued a nationwide injunction preventing the implementation of the federal mandate. At this point, the 100+ employee mandate is on hold pending further court action.
Keep in mind that the injunction does not restrict Oregon from adopting a similar or stronger mandate. For now, Oregon OSHA and the Governor’s office have stated that they will not take immediate steps to implement or enforce the federal ETS until there are further developments in the federal court case. However, as with all things COVID, things are fluid, and it is difficult to predict what may happen next.
Nationwide Mandate on Federal Contractors – Status: On Hold
A nationwide mandate requiring all federal contractors and subcontractors to vaccinate their workforce was announced back in September. This mandate would require that the employees of a company who were involved in any aspect of a federal contract or subcontract would need to be vaccinated unless a disability or religious exception applied. The mandate was initially pushed back to January 18, 2022. On Tuesday, a federal court in Georgia issued an injunction preventing the enforcement of the mandate nationwide. As a result, federal contractors and subcontractors are not required to take action to implement the mandate at this time. That said, higher tier contractors are not limited by the injunction and, particularly where contract provisions are not in place, may elect to enforce mandates per their signed subcontracts.
Nationwide Healthcare Worker Mandate – Status: On Hold
Similar to the national mandate on 100+ employers, President Biden issued a national mandate for the vaccination of healthcare workers. This mandate was also subject to legal challenge and a federal court in Louisiana issued a national injunction in late November preventing CMS from enforcing the mandate on healthcare workers.
In Oregon, it is important to note that the federal court injunction does not impact the mandate Governor Brown already issued, which required all healthcare workers to vaccinate as of mid-October unless an exception applied, and the healthcare employer could accommodate the exception without undue hardship.
Private Employer Vaccine Mandates – Status: Typically Enforceable, with Exceptions
Although governmental mandates at the federal level have not met with much success, employers have considerable latitude in implementing vaccine mandates within their own company. As a practical matter, employers are limited only by: 1) employee requests for an accommodation because of a disability that prevents the employee from vaccinating; or 2) requests for an accommodation based on the employee’s sincerely held religious beliefs.
Employers cannot impose a vaccine mandate without also considering exception requests on a case-by-case basis. Exception requests that don’t fall within the disability or religious belief category can typically be rejected. For example, objections based on political or social beliefs or concerns about the safety of or science behind the vaccines. For requests based on a disability or sincerely held religious belief, the employer must carefully consider whether the exception request can be granted as a reasonable accommodation:
• For employees with disabilities, the employee must substantiate the disability and the inability to vaccinate with a supporting doctor’s note. Both physical and mental disabilities can be a sufficient basis to establish an exception. While an employer could potentially require an independent medical exam if they disagree with the doctor’s note, the best practice is to accept the doctor’s opinion as legitimate and binding on its face.
• For a request for accommodation based on sincerely held religious beliefs, the EEOC has issued guidance advising employers to assume that the request is sincere unless there is objective evidence that calls the employee’s expressed religious beliefs into question. Challenging the sincerity of an employee’s beliefs should be the rare exception. The EEOC does not require particular documentation, and the employee does not need to adhere to the tenets of any particular religion nor get the sign off of a pastor or other authority. Rather, the employee and employer can rely solely on the employee’s own statement of beliefs.
Even if an employee claims an exception, the request may be denied if the employer can make the case that the failure to vaccinate will cause undue hardship on the business operations or pose a safety risk to customers or employees. Remember that this decision must be able to withstand scrutiny if challenged in court. They employer must evaluate the unique risks imposed by failure to vaccinate in light of the employee’s particular position, and the ability to implement measures such as remote work, social distancing, frequent testing, transferring the employee, and masking. Potential arguments that the individual has COIVD antibodies from a prior infection should also be considered.
Some jobs may involve such frequent and close contact with vulnerable individuals that the employer can make a strong case for undue hardship and direct threat to safety. However, denying an accommodation comes with risk and the decision should not be made lightly or without the advice of legal counsel and a candid evaluation of all available options.
Given that change is constant when dealing with COVID-19, we will continue to monitor these issues going forward and are happy to assist with any questions or compliance needs.
Randall Sutton is a partner in the Employment Law & Litigation practice group. Randy is also a member of the Health and Wine & Vine industry groups. The information in this article is not intended to provide legal advice. For professional consultation, please contact Randy at rsutton@sglaw.com at Saalfeld Griggs PC. 503.399.1070.
The contents of this publication are current as of December 9, 2021, and should not be construed as legal advice. Information in this publication may only apply in certain states. Readers should not act upon information presented in this publication without individual professional counseling. Receipt of this publication does not constitute or create an attorney-client relationship. The material in this publication may not be reproduced without the written permission of Saalfeld Griggs PC. © 2021 Saalfeld Griggs PC
