As noted in prior FMR blog posts, generally speaking, employers can require vaccination as a condition of employment, with some limited exceptions for medical reasons or sincerely held religious beliefs. See: https://www.fmr.law/blog/2021/august/workplace-vaccine-mandates-for-employees/ But some of the federal vaccine mandates issued last fall are now on hold. What does this mean for workers in Ohio? The short answer is: it depends. Here’s the latest.
Last September, the Biden Administration announced a COVID-19 Action Plan aimed at reducing the number of unvaccinated Americans by using regulatory powers and other actions to increase the number of American workers covered by vaccination requirements. As part of the plan, the President issued several Executive Orders requiring vaccination for federal workers, federal contractors, and for healthcare workers. In response to the President’s actions, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) developed a rule that would have required private companies with 100 or more employees to require a “fully vaccinated” workforce or require unvaccinated workers to produce a negative test result before coming to work. A separate vaccine requirement for all employees of healthcare facilities receiving Medicare/Medicaid funds was also established by the U.S. Department of Health and Human Services (“HHS”). And a third Executive Order was issued to require vaccinations for employees of some federal contractors. A series of lawsuits were filed across the country challenging these mandates. While the cases are still in the courts, several courts have issued stays to stop these mandates from going into effect and the U.S. Supreme Court has weighed in on two of the cases.
On January 13, 2022, the United States Supreme Court put a hold on enforcement of the OSHA Emergency Temporary Standard (“ETS”) that would have required employers with 100 or more U.S. employees to require proof of COVID-19 vaccination or weekly COVID-19 testing, plus imposed face covering and other mitigation strategies. OSHA has since withdrawn its ETS. While OSHA is still moving forward to try and establish a permanent safety rule regrading COVID vaccines and related safety measures for the workplace, there is no federal mandate in effect now.
Several lower federal courts have also halted enforcement of the vaccine mandates for federal contractors and federal employees. These cases have not reached the Supreme Court yet, but the lower court decisions have put the federal contractor mandate on hold in Ohio, Kentucky, and Tennessee, among other states, and the mandate for federal employees has been put on hold nationwide.
By contrast, in mid-January the U.S. Supreme Court lifted a stay that a lower court had issued against the HHS vaccine mandate, allowing the vaccine requirement to go into effect for employees of hospitals and other healthcare settings such as nursing homes, dialysis clinics, and home healthcare that receive federal funds. The Supreme Court found that HHS had the authority to require vaccines for these healthcare facilities to receive Medicare and Medicaid funding. So what does all this mean for workers in our area?
COVID-19 Vaccinations Are Required for All Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings per the HHS Mandate
Under the HHS interim final rule vaccinations are required for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. The vaccine requirement applies to nursing home staff as well as staff in hospitals and other Medicare/Medicaid regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.
The Requirement that all Federal Workers and Contractors that Do Business with the Federal Government be Vaccinated is on Hold
The Vaccine Mandate for Employers with 100+ Employees to Require Workers to be Vaccinated or Tested Is on Hold and the OSHA ETS has been Withdrawn
Companies with 100 or more employees are not required adopt a vaccine mandate, however private employers can voluntarily choose to require vaccination as some have already done. As noted in prior FMR blog posts, generally speaking, employers can require vaccination as a condition of employment, with some limited exceptions for medical reasons or sincerely held religious beliefs. See: https://www.fmr.law/blog/2021/august/workplace-vaccine-mandates-for-employees/
What if My Employer Has a Mandate and I Cannot Be Vaccinated?
Employer vaccine mandates are subject to the reasonable accommodation provisions of the Americans with Disabilities Act (ADA) which protects workers from disability discrimination, and Title VII of the Civil Rights Act which protects workers from discrimination based on religious beliefs. If a worker has a disability or a sincerely held religious belief that prevents them from getting vaccinated, the employee may be entitled to a reasonable accommodation under these civil rights laws, so long as providing that accommodation does not cause an undue hardship on the employer.
For an employee who can’t receive the vaccine because of a medical condition, before the employee could be excluded from the workplace, the employer must show that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. The employer must attempt to accommodate an employee who can’t take the vaccine due to a disability unless there is no reasonable way to do so. Only after conducting a review and finding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace. But the decision to exclude the employee does not automatically mean that the employer can simply fire the unvaccinated worker who is eligible for accommodation. The employer should consider whether there are other alternatives in addition to required periodic COVID-19 testing, such as wearing a face mask at work, social distancing, working a modified shift, or the option to work remotely.
Federal law also requires employers to accommodate employees who have a sincerely held religious belief which prevents them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer. If that is the case, the employer can exclude the employee from the workplace. But just like with a disabled employee who cannot get the vaccine, an employer cannot automatically terminate the employee who is eligible for accommodation. Instead, the employer should consider whether any other accommodations can be provided that would enable the employee to continue working, such as remote work or work in an alternate location.
Generally, if an employee does not meet one of the two narrow criteria for possible accommodation under the ADA or Title VII, an employer may terminate the employment relationship if the employee declines to be vaccinated.
If you are terminated from employment because you do not meet one of the exemptions, you may apply for unemployment benefits. However, employees are only eligible to receive unemployment benefits if they are terminated without just cause. Employers could argue that failure to comply with the employer’s workplace rules regarding vaccination is a termination with cause. In that case, benefits may be denied.