While employers are preparing for the many unknowns linked to the upcoming federal workers' mandate for vaccinations, there is much they can do to prepare for the increased risks of requiring workers to be vaccinated, legal experts say.
On 9 September, President Joe Biden announced that he had called on the Occupational Safety and Health Administration to introduce a temporary emergency standard that would force companies with more than 100 workers to require their employees to receive COVID-19 vaccinations or weekly tests.
Many details about ETS have not yet been released, and legal experts have raised many questions about OSHA's latest COVID-19 action.
“When? What are the parameters? There are many major problems, says Randi Winter, Minneapolis-based partner with Spencer Fane LLP, who said the announcement recently sparked calls from employer customers struggling with issues such as who should pay for the weekly test, what proof of vaccination will be required and what other administrative costs involved, such as keeping track of possible booster shots and the task of monitoring exceptions.
The administration did not set a timeline for OSHA to implement the emergency standard. When Biden, one day after its inauguration in January, called on OSHA to create an emergency standard for workplace safety at COVID-1
OSHA did not respond to a request for comment.
Elizabeth Wylie, Denver-based partner in work and employment practices for Snell & Wilmer LLP, said employers who have already started mandates are wondering if their own plans will be sufficient to meet the upcoming federal requirement.
"Employers who have already gone through the pain of a vaccine mandate and managed employee relapse, they really do not want to return to it," she said.
Meanwhile, company consultants say it's time to prepare their human resources departments and US Equal Employment Opportunity Commission processes for what is to come: requesting exemptions from workers who choose not to receive the vaccine for religious or health reasons.
"Companies owe it to themselves to put together a framework to deal with this," said Chuck Kable, General Counsel, General Counsel and Human Resources Manager for The Woodlands, Texas-based Axiom Medical Consulting Inc. "You have to have a protocol and a process that you must administer consistently and over time, and you must treat everyone equally. "
" If an employer does not properly consider the requests that may be a liability, "says George Ingham, Tysons Corner, Virginia-based partner with Hogan Lovells US LLP, adding that the process of obtaining an exemption is an "involved" one that federal law requires employers to follow step by step or risk violating a worker's rights.
An employee requesting housing goes through what is called an "interactive process".
“That process can take weeks, it can take months; sometimes you have to follow up several times, and it can be burdensome if you get many (exceptions) requests, says Ingham.
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Employers who voluntarily initiated vaccine mandates have met with many exemption requests, according to many media reports. For example, "thousands" of employees of the Los Angeles Police Department requested exemptions from the city's mandate that workers be vaccinated by September 13
. exceptions and medical experts who go into health exemptions that may not be approved.
"There are not many clinical reasons not to get vaccinated," says Dr. Jeff Levin-Scherz, Boston-based public health leader at Willis Towers Watson PLC and assistant professor at the Department of Health Policy and Management at Harvard University. Such requests can face challenges, he said.
"You have to have something that rises to disability," Ingham said of health-related exceptions.
"Where employers can travel is when they do not treat employees equal to these requests," he said.
Adam Kemper, Fort Lauderdale, Florida-based partner with Kelley Kronenberg PA, said that companies that face mandate reveal themselves to many responsibilities – from not retaining and retaining private workers' health information to not following the steps of EEOC exemptions.
"Any mishandling of a request for an exemption may conflict with anti – discrimination laws," he said, adding "there is nothing to prevent a company, especially one unfamiliar with these issues, from now taking in appropriate HR staff, a consultant or employment adviser to understand what to expect. ”
A workplace vaccine mandate will not relieve employers from taking and continuing other measures to combat infectious diseases, according to experts.
" Something we have advised our clients from the beginning (s) to never differentiate between your vaccinated and unvaccinated employees regarding your infection program, "said Dr. Scott Cherry, Chief Physician of The Woodlands, Texas-based Axiom Medical Consulting Inc., which provides staff, legal and medical advice for employers.
The reason is that vaccinated people can still spread COVID-19, he said.
USCenters for Disease Con trol and Prevention came to this conclusion at least twice. In August, the CDC published an investigation into an outbreak in July in Provincetown, Massachusetts, in which several hundred people who participated in a function were infected with COVID-19, of which about 74% were fully vaccinated.
Recently, the agency released a study on September 21 on an outbreak of covid-19 in July / August among 172 inmates in an unnamed federal prison in Texas where 79% had been vaccinated. According to the CDC, 92.8% of the 42 unvaccinated inmates contracted an infection, as did 69.7% of the 185 fully vaccinated prisoners. However, the CDC said that severe illness was more common among the unvaccinated.
As much as there is a general policy benefit to vaccinations, there is still a possibility of spreading infection if an individual is vaccinated, says Chuck Kable, Axiom Medical & # 39 ;s Chief Legal Officer, Attorney General and Chief of Staff.
"Ultimately, when you think about this risk … it's about (implementing) a holistic, layered approach in your business," he said, adding that companies "still have to do other things," for example. required by the Occupational Safety and Health Administration and promoted by the CDC guidelines, such measures as masking, social distancing and contact tracing.