Vaccine Mandates – The Rules Keep Changing

When the COVID-19 vaccinations began rolling out in February 2021, many people began to see a light at the end of the tunnel. The United States distributed vaccines and made them available nationwide at a swift rate however vaccination rates began to slow steadily over time. Currently, over 220 million people in the United States have completed a vaccine regime but it has been a struggle to reach the 75% herd immunity threshold that experts have championed. As of June 1st, 2022, the United States sits at about a 67% vaccination rate.

Now, mask mandates and social distancing guidelines are beginning to relax, and the world seems slightly safer. Many employers, however, still feel a sense of unease and are continuing to exercise caution when it comes to vaccination policies in the workplace and with constant changes to policies and recommendations, the world of vaccine mandates is often a confusing one.

Vaccine mandates for healthcare employees

In April 2022, the Centers for Medicare and Medicaid Services (CMS) released guidance on complying with their Omnibus COVID-19 Health Care Staff Vaccination rule. This ruling requires that all staff in Medicare-certified facilities must be vaccinated. Medicare certified facilities must be accredited and have a CMS Certification Number (CCN). These facilities include hospitals, ambulatory surgery centers, home health agencies, and long-term care facilities. While employees who work exclusively off-site, and do not come into contact with patients or other staff members are not subject to the ruling, any employees, practitioners, students, interns, trainees, or vendors fall under the scope of the CMS rule.

In order to institute the ruling for these staff members, the CMS guidance focused on three groups based on location:

• Group 1: California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin
• Group 2: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming
• Group 3: Texas

Each group was subject to specific deadlines for a two phased compliance approach. Phase 1 required that the healthcare facilities had all policies and procedures in place for ensuring full staff vaccination, providing exemptions, and tracking staff vaccination records. The staff at the facilities included within the regulation must have received, at a minimum, the first dose of their vaccination series or a single dose COVID-19 vaccine prior to staff providing any care, treatment, or other services for the facility and patients. Phase two required that all staff, excluding those who received an exemption, must be fully vaccinated.

Compliance with this ruling is determined based on reviews of the facilities policies and procedures, documented lists of staff and their vaccination status, as well as interviews and observations. So far 69 hospitals have been cited as not complying with the mandate. CMS has indicated that it will provide certified facilities with a warning before enforcing penalties, but if a facility is not in compliance and fails to remediate, they will be subject to penalties such as:

• Denial of CMS payments or termination of their contract
• Development and implementation of a CMS Corrective Action Plan
• Monetary penalties

Vaccine mandates for federal and public sector employees

After a federal district court judge blocked the federal employee vaccine requirement in January 2022, a federal appeals court reversed the district judge’s decision on April 7, 2022. The Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees applies to employees of the executive branch of the federal government. Those employees in the judicial and legislative branches are not covered by the order.

Federal employees were required to receive their last dose of the vaccination series no later than November 8^th, 2021, to be considered to be fully vaccinated by the November 22, 2021, deadline. Any individuals who were hired to begin government service needed to be fully vaccinated prior to their start date.

For those employees in the public sector at the state and local levels, vaccine mandates are subject to the mandates issued by those state and local governments.

Vaccine mandates for private business employees

On January 13, 2022, the U.S. Supreme Court halted the OSHA vaccine-or-test rule for private businesses with at least 100 employees. In light of that, private employers have the opportunity to institute their own policies and mandates for vaccinations. As of April 2022, nearly a third of employers who had previously required vaccines reported that they were planning on dropping the requirement.

Much like those in the public sector, businesses are beholden to any state efforts to ban or enforce vaccinations. As of June 1, only one state in the U.S. has outright banned vaccination mandates for private and state employees. 14 states, however, have policies which ban vaccine mandates for state workers, and proof of vaccines. Additionally, each of these states require that private employers allow exemptions for vaccinations.

Mandate map sourced from The National Academy of State Health Policy.

What to do if employees refuse a COVID-19 vaccination?

If an employee comes forward with an exemption request due to disability or religious observation, employers should communicate directly and openly with the employee. The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance pertaining to COVID-19 vaccinations for those with disabilities. Under the EEOC guidance, if an employer requires vaccinations and an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, that employee may be excluded from the workplace:

“If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.”

The EEOC defines a direct threat as a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodations”. Employers should consider four factors when trying to determine if a direct threat exists:

• The duration of the risk
• The nature and severity of the potential harm
• The likelihood that the potential harm will occur
• The imminence of the potential harm.

Even if an employer has determined that an employee’s disability poses a direct threat to their own health, the employer must consider reasonable accommodations such as alteration of the workplace environment, remote work, or allowing a leave of absence.

Similarly, if an employee requests a religious exemption, employers should consider reasonable accommodations. Title VII of the Civil Rights Act of 1964 requires an employer to accommodate an employee’s sincerely held religious belief, practice, or observance, unless it would cause an undue hardship on the business.

Despite OSHA’s vaccine or test rule for large employers being halted, the Occupational Safety and Health Act general duty clause requires employers to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”. Providing personal protective equipment or face coverings, continuing to implement physical distancing, and allowing employees who test positive the appropriate amount of time to recover all contribute to a hazard-free workplace.  If you decide to also include a vaccine mandate in your policies, it should be job-related and consistent with what is necessary for the health and well-being of those involved in the business.