Staffing Legal News – The COVID-19 Vaccination Mandates: The Short Story

A quick summary of what you need to know.

Employers all over the United States are scrambling to come to grips with the flurry of regulatory actions mandating COVID-19 vaccinations. There are actually three separate mandates that become effective January 4, 2022, each promulgated by a different agency. The January 4th date is the day that affected employees must be two weeks post-full vaccination status. The mandates are:

1. The employer mandate (Department of Labor), covering companies with more than 100 employees;
2. The federal contractor mandate (Presidential Order), applying to federal government contractors and subcontractors at any tier, and;
3. The healthcare worker mandate (Centers for Medicare Services), which applies to workers at most health care facilities and nursing homes, whether or not the workers are in patient care roles.

As usual, the rules do not give specific guidance regarding the unique circumstances of the staffing industry. And understand that these regulations are muddy to being with, so do not look for certainty. The entire country will be muddling through the process while legal battles go forward on many fronts challenging various aspects of the mandates, and the mandates themselves.

1. The employer mandate. The employer mandate requires vaccinations of on-site workers or, alternatively, weekly tests (at the employee’s expense) and masking at work. If you have less than 100 employees, you are exempt. What if you have 15 internal employees and 90 consultants on assignment? Can you separate the workforces when making the coverage determination? Arguably, since OSHA generally treats workers on assignment as members of the Client’s workforce for purposes of workforce safety. But the prudent course will be to assume there are over 100 employees, and act accordingly. In any event, the Client is likely to insist that the mandate apply to any on-site temp workers. The good news is that the employer mandate does not require vaccinations of remote workers.
2. The federal contractor mandate. Here, vaccinations are required of all employees and independent contractors, regardless of company size. Many staffing clients are considered federal contractors, and they have started pushing this requirement down to the agencies. Unlike the employer mandate, the federal contractor mandate applies to remote employees. The terms of this mandate are likely to be driven by the clients, who have broad discretion on how to implement and enforce the mandate.
3. The health care mandate. This mandate applies to workers who might enter a covered facility or otherwise come into contact with patients or facility staff, even only occasionally. It should be assumed that independent contractors are covered. CMS has issued detailed regulations on qualifying for the medical and religious exemptions, unlike the situation with the other two mandates.
4. The exemptions. There are two possible employee exemptions to these mandates: (i) a medical accommodation or ii) a religious accommodation. These are actually not full exemptions, but a requirement to make reasonable accommodations to qualifying employees, such as remote work if it does not create an undue hardship on the employer (or client, in the case of staffing). The medical exemption is straightforward – get a doctor’s note asserting that a temporary or permanent condition exists, and the accommodation interactive process can begin. The religious exemption is where most of difficulty will be. A deep inquiry into the legitimacy of the religious exemption claim should generally be avoided if possible, due to the difficulty of discerning someone’s true beliefs, as well as the risk of liability if you wrongly determine an employee’s belief is not sincere. Fortunately, the EEOC has come to the rescue with recent Technical Guidance advising employers that they are not required to closely scrutinize requests for religious accommodations:
   1. L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value?  May the employer ask for additional information? (10/25/21)
   2. Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.  An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.

So one potential method of responding to religious accommodation requests is to simply ask (in writing): Would complying with the COVID-19 vaccination requirement substantially burden your religious exercise or conflict with your sincerely held religious beliefs, practices, or observances?

If the written answer is “yes,” the EEOC guidance would suggest that no further inquiry is needed. Of course, if your client requires more, matters can become complicated. In such event, you should at least make it clear to your employee that the inquiry is your client’s, not yours.