VACCINATION MANDATES: BLOG SERIES PART 4

Another day, another round of questions and answers related to the OSHA ETS.  Today we will provide some additional information on what exemptions are permitted and required to the extent an employer proceeds with the COVID-19 vaccination mandate.

 If an employee previously had COVID are the exempt from a vaccination mandate?

 Prior to the OSHA ETS (and the CMS emergency regulations), some employers who mandated the COVID-19 vaccination had provided a limited exclusion for those individuals who had previously tested positive for COVID-19.  The belief was that because the individuals had COVID, they had sufficient anti-bodies (at least for a period of time) and the vaccination date for that person may be delayed.

 The ETS (and also the CMS emergency regulation) have now eliminated this potential exemption for employees who previously had COVID-19.  Accordingly, employees who previously had COVID-19 are required to adhere to the requirements of the ETS.  As such, if an employer adopts a mandatory vaccination policy, the employee would need to get vaccinated (unless the individual receives a medical or religious exemption).  If the employer adopts the COVID-19 vaccination, testing and face covering policy, and the employee remains unvaccinated, he or she would need to comply with the testing and face covering policy until or unless they become vaccinated.

 Employers must be clear in the communication to their employees that prior COVID infections do not negate the requirement to adhere to the implemented policy.

 What exemptions are required under either the OSHA ETS or the CMS emergency regulation?

Employers who implement a mandatory vaccination policy must still allow employees to apply for either a religious or medical exemption wavier to the COVID-19 vaccine.  In this regard, employers must provide a waiver process for individuals who are unable to receive the vaccination for medical reasons or due to a sincerely held religious belief.  Employers must adopt a written policy which informs employees of their rights to request a waiver, the time period to provide such a wavier request, the information which must be provided, and the consequences for failing to receive the vaccination if the waiver is not obtained. 

By way of example, if an individual has a medical condition which may cause them to have a severe allergic reaction to the COVID-19 vaccine or a sincerely held religious belief that precludes them from receiving the vaccine, an employer cannot mandate that employee receive the vaccination.  Employers must be mindful that if the sincerely held religious belief is at issue, they should not act as if they are Magnum P.I.  Unlike a medical inquiry, an employer should not generally request supporting information or documentation to verify a sincerely held religious belief.  If, however, there is an objective basis for questioning the sincerely held religious belief, an employer can request supporting information.  Employers must err on the side of caution when questioning a religious belief and only do so if there is a legitimate reason based on the factors set forth herein. 

If an employee is granted an exemption, he or she will be required to adhere to the testing and masking requirements set forth in the ETS and any additional measures an employer will decide to implement.   

Stay tuned for the next part of this continuing blog series. For questions about how this might affect your workplace or any other labor and employment law topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that effect your workplace, be sure to subscribe to our blog and follow us on social media.