Legal experts say there is much that employers can do now as they prepare for President Joe Biden's upcoming COVID-19 vaccine mandate, which will affect up to 100 million workers.
Mr. Biden announced on September 9 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 undergo weekly tests.
Many details about ETS have not yet been published. Legal experts, referring to OSHA's months-long process of developing a safety standard for COVID-19 that eventually only applied to healthcare professionals, say that the development of the new standard could take several weeks.
OSHA did not respond to requests for comment on the timing of the standard.
Those who consult with companies 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 manage consistently and over time, and you must treat everyone equally. ”
“ If an employer does not properly consider these requests, that may be a responsibility, ”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 such as federal law requiring 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.
Employers who voluntarily initiated vaccine mandates have met with many exemption requests, according to many media reports. For example, "thousands" of Los Angeles Police Department employees have applied for exemptions from the city's mandate to vaccinate workers by September 1
Widespread questioning of the legitimacy of certain requests also makes headlines, with religious groups taking either side of the issue on religious exceptions and medical experts who take into account health exceptions that may not pass.
"There are not many clinical reasons for not being 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 Administration 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 are not treating employees equal to these requests."
Adam Kemper, Fort Lauderdale, Florida-based partner with Kelley Kronenberg PA, said that companies facing mandates face many debts — from failing to maintain and retain the health information of private workers so that they do not follow the steps of EEOC exemptions. .
"Any mishandling of a request for an exemption may be contrary to anti – discrimination laws", he said, adding "there is nothing to prevent a company, especially one unfamiliar with these issues, from now taking in suitable HR staff, a consultant or employment adviser to understand what to expect. ”