Tag: mandatory covid vaccine

Vax Compliance: A Guide to OSHA ETS for Private Sector Employers

November 8, 2021

The Occupational Safety and Health Administration (OSHA) has released its COVID-19 mandatory vaccine mandate by the federal government for the private sector under the Emergency Temporary Standard (ETS). This article will take a quick look at the OSHA ETS and what it means for your company. 

What Does the Policy Say? 

According to the ETS, employers with a workforce of 100 or more employees are to put in place a mandatory vaccine or weekly testing and mask policy. 

Generally, these COVID-19 company policies should comply with the ETS, OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines, and the criminal penalties associated with knowingly supplying false statements or documentation.

Which Companies Aren’t Covered? 

While employers with 100 or more employees must meet the ETS requirements, some businesses do not fall under the mandatory policy. They include: 

  • Employers/employees under the Safer Workforce Task Force COVID-19 Workplace Safety

  • Healthcare workers already under the existing healthcare ETS

  • Employees working from home or exclusively outdoor 

What Are the Effective Dates of the ETS?

The ETS mandates that employees must complete all the policy requirements aside from the testing for employees who have not completed their primary vaccination doses within 30 days of its publication. 

Also, company management must begin testing of staff members who have not completed the primary doses of their vaccination 60 days after the policy’s publication. 

Are There Any Vaccination Exemptions? 

While every private-sector employer must enforce mandatory vaccinations for all employees under the ETS policy, some members of a workforce may qualify for exemptions. Examples of such individuals include:

  • Workers who have a medical condition that makes it necessary to delay a vaccination

  • Employees who qualify for a reasonable accommodation under US civil rights laws because of religious beliefs, disabilities, etc

  • Staff members who have illnesses with a diagnosis that suggest that they should not receive the vaccine 

What About Paid Time Off for Vaccinations 

The ETS also requires employers to provide paid time off for members of their workforce to get vaccinated and recover from any effects the vaccine may cause.

The stated timeline is four (4) hours at the standard pay rate to get each dose of the vaccine. For the side effects of the vaccination, the OSHA ETS mandates every employer in the private sector to provide a reasonable timeframe and paid sick leave to enable a full recovery. 

Masking and Testing Requirements 

Employees who have not completed their vaccine doses must undergo weekly testing according to the ETS. The policy also does not require employers to pay for the tests. 

Also, a staff member must immediately notify their employer after a positive COVID-19 test and cannot resume work until they meet the return requirements. 

The ETS also requests employees who are not fully vaccinated to wear face masks indoors or whenever they’re in a vehicle with a colleague unless it interferes with work operations. 

Vaccination Records 

According to the ETS, employees must have the following documents on file: 

  • Records of vaccination for each employee regardless of whether they’re fully or partially vaccinated

  • Records of test results provided by each employee

However, businesses who have acquired this information before the ETS policy are not required to do so all over again. Note that these are medical records and should be treated as confidential under the ADA.

Get Legal Help For Your Company

Have questions? Contact us.

How to Reduce Risk of Litigation: Mandatory Covid-19 Vaccine Religious Exemption

September 9, 2021

As we attempt to escape the dark days of the COVID-19 pandemic, thanks in no small part to the availability of a vaccine, new changes are still being made in offices across the United States and the world to make that exit a reality. In the US, several  employers require staff members to take vaccinations to keep the office safe and free from health scares.

But one size does not fit all — several employees are requesting an exemption from compulsory vaccinations on various grounds, including religious reasons. But is this a conversation worth having? And what does US federal law say about the rights of individuals to exempt themselves from compulsory vaccinations on religious grounds? Let’s find out.

Understanding Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on religious beliefs or practices. In the case of the mandatory COVID-19 vaccinations, this law requires small business owners to accommodate a staff member’s request to be exempted from compulsory vaccinations because of sincerely-held religious beliefs.

Of course, this does not mean employers must accept an employee’s plea not to take the vaccine without question. Based on specific clauses in Title VII, company executives can look into religious objections made by employees to determine whether their requests are legitimate and fall in line with the requirements of the law.

Quickly, let’s look at some clauses in Title VII that may help small business owners handle issues surrounding religious exemptions from COVID-19 vaccinations.

Determining Whether the Employee’s Request is Based on Sincerely Held Religious Beliefs

While US laws require company executives to accommodate a staff member’s sincerely held religious beliefs, it can be tricky to recognize this belief, faith, or practice.

For clarity, Title VII does not recognize philosophical, political, and social ideologies under religious beliefs. As such, employees cannot use those factors as a basis to exempt themselves from vaccinations. Title VII also does not cover personal preferences.

That said, when an employer is not clear on the religious beliefs of a staff member, the employer can request additional information – either through documentary evidence of the tenants and dogma of the faith or one-on-one explanations – to clarify the situation. However, before casting doubt on an employee’s beliefs, the employer must ensure her reservations are objective and not coming from a place of discrimination. To be on the safe side, though, we would recommend companies consult legal help for complete clarity and guidance before making any move to question a team member’s religious objections.

Refusing Appeals for Religious Vaccination Exemptions Because of Undue Hardship

Under Title VII of the Civil Rights Act, employers may deny a staff member’s plea for exemption if granting the request would cause undue business hardship. For better understanding, approving a request for religious accommodation may cause undue hardship if:

●      It will significantly decrease business efficiency and productivity

●      It will infringe the rights and privileges of other members of the workforce

●      It puts staff and  customers at risk of workplace hazards

●      It may require other members of the team to execute more than their quota of hazardous tasks

●      The accommodation is too costly

Accommodations to Consider in the Event of Religious Exemptions from Mandatory COVID-19 Vaccinations

If an employer decides to grant an employees’ requests to be exempted from COVID-19 vaccinations, the employer may need to make some changes around the office to accommodate these individuals. Some of the steps an employer can take for exempted employees may include:

●      Mandatory wearing of face masks

●      Social distancing within office premises

●      Remote working

●      Isolation to a specific workplace

●      Alterations to employee’s work schedule to limit interactions with clients and other members of the workforce

Before putting these measures in place, the employer will need to review company policies on religious accommodation with company executives and managers; discuss with employees the proposed accommodations to be put in place around the office; and, appoint a supervisor to process and respond to all requests for religious accommodations.

Get Legal Help 

Employment laws in the US can be tricky, and when it comes to religious exemptions from COVID-19 vaccinations, small business owners may require the aid of a legal professional to navigate the muddy waters and avoid any potential litigation.

Therefore, if you are in need of an attorney to help you with issues relating to religious exemptions from COVID-19 vaccinations, consider contacting The Law Office of Sheri Oluyemi, LLC. We have an experienced team of professionals who specialize in employment law cases for small businesses, and we can provide your company with the legal counsel to respond to religious accommodations for COVID-19 vaccinations.

Exemption from Mandatory COVID-19 Vaccine for religious employees

July 2, 2021

According to the law and guidelines from the Equal Employment Opportunity Commission (“EEOC”), it is possible for employers to require their employees receive a COVID-19 vaccination in most circumstances. This does not mean that all employers will make this a requirement, of course. But, they have the right to do so as a means to help improve the safety of their other employees, clients and customers.

Yet, there are certain exemptions from these mandatory COVID-19 vaccines that can be applied in certain cases. One of these is a religious exemption. Employee who demonstrate that their faith prohibits vaccination, would not automatically be not required to get a vaccine. The EEOC says employers are required to provide reasonable accommodation to these workers if their sincerely held religious beliefs, practices, or observance prevents vaccination. The only exception would be if the accommodation would create an undue hardship under Title VII of the Civil Rights Act of 1964.

Understanding the Religious Accommodation Standards

As the vaccines are being rolled out, more and more employers will likely start to see objections to getting the vaccine. Therefore, it is important for employers, as well as those who are seeking accommodations, to get a better understanding of what the objections entail.

Title VII requires that employers provide accommodations and exemptions to employees that object to the vaccine due to their religious beliefs. It is important to note the term “sincerely held religious belief” in these instances.

According to the EEOC, the definition of religion can go beyond just membership in a certain church or a belief in God. It could also include moral and ethical beliefs that are sincerely held. An example of this might be someone who has moral beliefs that they should not have certain substances and chemicals injected into them. This increases the potential number of people that might attempt to use religious exemptions as a means to not get the vaccine.

Can Employers Question the Sincerely Held Religious Beliefs of an Employee?

This is a tricky area of the law, and it is important that employers do not attempt to contact someone’s place of worship, and that they don’t question an employee incorrectly. Most of the time, employers will assume that the objection based on religious beliefs is honest.

However, there may be times that an employer has a reason to question whether the employee is being sincere or if it is truly the nature of their religion. It’s best to have legal counsel to help with these matters. If there is an objection to the employee’s beliefs, the employee can provide written materials and forms to provide a further explanation. Again, employers will only want to broach this subject after talking with an attorney.

Options for Reasonable Accommodation 

What are some of the various types of reasonable accommodations that could be provided for the employees? Many options are potentially available. Of course, because there are so many different types of workplaces, there could be many different types of accommodations that could work. This also means that not all reasonable accommodations will work for all work environments.

One of the simplest options that can work for some employers would be to allow the employees to wear masks and continue to socially distance themselves while in the workplace. Another option that could work for some types of work would be remote working. 2020 proved that remote work can be a good option for many types of companies.

Many businesses have already set up these types of systems and have been using them for their employees for months. They could simply allow those who do not want to get the vaccine based on their religious beliefs to continue working from a remote location.

Another option that might work for certain employers would be to provide an isolated area for that employee to work. This can ensure that they do not come into contact with others in the workplace. This solution will not work for all employers, of course.

When employers are coming up with potential reasonable accommodations, they must also make sure that they are legitimate options that will help the employee and their business. They cannot be retaliatory to “punish” an employee for not getting the vaccine.

What is Undue Hardship?

The limit to providing reasonable accommodations would be when those accommodations would present a hardship to the employer under Title VII. Employers cannot simply claim that they would have a hardship, though. They are required to show how making the accommodation for the employee would cause them undue hardship because of an exceedingly high cost or because it would cause problems with the operation of the business. The same would be true if the accommodation would compromise safety in the workplace, or if it infringes on the rights of other employees. If the accommodation requires that other employees do more than their usual share of work in place of the exempt employee, it could be considered undue hardship as well. The same would be true if the efficiency of the workplace decreases because of the accommodations.

The standard of proof for an undue hardship under Title VII does tend to be lower than when trying to meet undue hardship requirements for the Americans with Disabilities Act. Because it can sometimes be difficult to prove whether there is hardship in these cases.

Talk with an Attorney

Those employers who want to make sure they are abiding by the law when it comes to employees requesting reasonable accommodations for religious reasons will want to speak with an attorney.

Employees who worry that an employer is not providing them with reasonable accommodations or who is trying to force a vaccine despit

The Legality of an Employer-Mandated Covid Vaccine

March 28, 2021

Generally, Employers Can Make The Vaccine Mandatory

Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.

Employment At-Will

Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.

A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.

Civil Rights Legislation

According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.

There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.

Exemptions For A Mandatory Vaccine.

However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.

Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.

Generally, Employers Can Decline To Make The Vaccine Mandatory

A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.

But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.

Potential Pitfalls Requiring Other Vaccine Considerations

If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.

Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.

Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.

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As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.