The President’s COVID-19 Action Plan

On September 9, 2021, President Biden released his COVID-19 Action Plan requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. According to the president, “The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement.”

The ETS will also require employers with more than 100 employees to provide paid time off for workers to get vaccinated or recover from vaccination.

We are actively monitoring for the details of President Biden’s COVID action plan. Here is what we know and don’t know:

What We Know

• The mandate applies to employers with 100+ employees.
• It requires mandatory vaccination or weekly testing to come into work.
• It also requires paid time off to get vaccinated and recover.
• Fines will be assessed.
• If you have fewer than 100 employees, no federal contracts, and no healthcare workers, these new federal requirements do NOT apply to you.

What We Don’t Know

1. How do employers count to 100?
2. Do remote employees have to get vaccinated or tested?
3. What kind of proof do employers need to require?
4. Do employers need to do “due diligence”?
5. Will testing be done at home or at work?
6. Who pays for testing?
7. Will there be any funds or tax credits available?
8. What are the recordkeeping requirements?
9. Can employees claim religious exemptions from testing?
10. How will fines be assessed?
11. Will OSHA have the staff to enforce this?

FAQs

How should employers address pushback from their employees (or others) about having to follow the vaccine mandate?

• Put someone in charge of the whole process and make sure that complaints go to them. Don’t count on your frontline managers to know how to deal with escalations. They aren’t trained for that, and it’s not fair to them.
• Emphasize that this is a federal government requirement and that you have no choice about whether or not to comply. You can also emphasize that penalties may be very steep – so steep that even one or two violations could put the business in jeopardy.
• Focus on the fact that this is about safety. If employees don’t want a vaccination, there is a simple alternative, but in order to ensure that the workplace is safe with highly infectious Delta making the rounds, vaccination or testing must be done.

How do I accommodate an employee if all of my clients require employees are vaccinated?

We recommend speaking with your clients about possible accommodations for those employees who request an accommodation for a disability or sincerely held religious belief. Federal law generally requires employers to provide accommodations for employees for these reasons unless doing so would cause an undue hardship. There isn’t an exception for client requirements, which puts you between a rock and a hard place.

The first step is asking your client about potential exceptions to their mandatory vaccination requirement. If your client says that they will not grant any exceptions, we recommend placing employees who require a religious or disability accommodation with a different client. If all your clients require employees to be vaccinated without exceptions, possible accommodations might be to reassign the employee to a vacant position that they‘re qualified for or to place the employee on a leave of absence. Either way, you should discuss the available options with the employee.

If the only option is leave, you’ll want to discuss the length of leave with the employee (it might be temporary, as with pregnancy). The estimated duration will help you evaluate whether granting leave would cause an undue hardship.

How is the Delta variant different than regular COVID?

• The Delta variant is twice as contagious as original COVID.
• Fewer people have a cough or loss of smell, more people have headaches, sort throats, and runny noses (looks more like the common cold).
• It appears that Delta may cause more severe illness in unvaccinated people than the original.
• Delta appears more likely to cause breakthrough infections for the fully vaccinated, but the vaccines remain highly effective against severe illness, hospitalization, and death from Delta.
• When a vaccinated person catches Delta, their viral load is as high as an unvaccinated person for a time (unlike earlier strains of COVID), but it goes down faster than for the unvaccinated, so they will be infectious for shorter periods of time.

What should I do if an employee says they can’t get vaccinated due to a religious belief or disability?
 
Assuming no state law or collective bargaining agreement prohibits it, employers can generally require employees to get the COVID-19 vaccine as a condition of continued employment, although they may need to make exceptions for employees who can’t get vaccinated because of a sincerely held religious belief, disability, or possibly pregnancy.

Religious Belief
Title VII of the Civil Rights Act of 1964 requires employers that have 15 or more employees to accommodate employees’ religious beliefs that are sincerely held if it doesn’t create an undue hardship. Title VII defines religion very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people or possibly just one person.

Here’s the basic framework. If the answer is no to any question, generally no accommodation is required; if the answer is yes to all questions, an accommodation is required.

• Does the person have a belief that is religious?
• Is the belief sincerely held?
• Can an accommodation be made that would enable the employee to do the job, without creating an undue hardship?

According to the Equal Employment Opportunity Commission (EEOC), employers should generally assume that the employee’s religious belief is sincerely held, but if “they have an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

Under Title VII, undue hardship is defined as “more than a de minimis cost.” The EEOC explains this further in its guidance here.

Disability
The Americans with Disabilities Act (ADA) generally requires employers to provide accommodations to employees who have disabilities to enable them to perform the essential functions of their job, provided the accommodation doesn’t create an undue hardship. The definition of disability under the ADA is pretty broad and includes both physical and mental disabilities.

If an employee requests an exception to your mandatory vaccination policy because of a disability, then you would be required to engage in the interactive process. The interactive process is essentially an ongoing conversation with the employee to explore potential accommodations. You can require the employee to provide documentation from their health care provider confirming that the employee’s health condition prevents them from getting vaccinated and, if temporary, an estimate of the expected duration of the need for the accommodation.

The company would then determine whether it’s possible to make an accommodation that would enable them to perform their essential functions without creating an undue hardship.

Safety Assessment
Companies who are considering excluding unvaccinated employees from the workplace will ultimately need to assess whether allowing an employee to be unvaccinated, while engaging in other safety measures, would pose a direct threat in the workplace.

We recommend reviewing the EEOC’s guidance on what qualifies as a direct threat before making this determination. If you conclude that allowing an employee to remain unvaccinated rises to the level of a direct threat, then you are required to evaluate whether potential accommodations would eliminate that threat or reduce it enough so that it no longer meets the standard of being a direct threat. If no accommodations exists that would reduce the threat sufficiently (without creating an undue hardship), then you wouldn’t be required to make an exception for the employee.

If you believe there is no accommodation that will make it safe enough for that employee to be in the workplace, and they are not able to work from home, we recommend working with an attorney to assess the risk of termination or exclusion from the workplace.

Documentation
Employers should keep documentation as to how their determination to grant or deny a request for an exception to their mandatory vaccination requirement was made, which could include:

• Accommodation request form and supporting documentation, if any
• Emails to/from the employee about their request
• Notes on the employer’s decision-making process

What do I do if I have doubts about the legitimacy of a religious accommodation request?

Title VII of the Civil Rights Act of 1964 requires employers that have 15 or more employees to accommodate religious beliefs that are sincerely held if it doesn’t create an undue hardship. Title VII defines “religion” very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, only held by a small number of people (and maybe even just one person).

We understand it can be challenging when you’ve received a religious accommodation request that you have reason to doubt. We’re happy to give some general guidance but are unable to give definitive guidance as to whether this employee has a sincerely held religious belief or whether you would be required to provide an accommodation in this situation. We recommend speaking to legal counsel to help you make this determination.

According to the Equal Employment Opportunity Commission (EEOC), employers should generally assume that the employee’s religious belief is sincerely held, but if “they have an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

Typically the following are not considered religious beliefs and therefore don’t require an exemption from your mandatory vaccination policy:

• Political beliefs (e.g., “Vaccination infringes on my personal liberty.”)
• Personal preferences (e.g., “I prefer to risk getting COVID rather than getting vaccinated.”)
• Medical beliefs (e.g., “COVID isn’t that bad.”)
• Concerns about the vaccine’s Emergency Use Authorization (EUA) status (if the employee can’t access a vaccine with regular FDA approval)
• Conspiracy theories (e.g., “COVID is a hoax.”)

Please note that there could be overlap between a sincerely held religious belief and another belief, such as a political belief—that overlap does not place it outside the scope of Title VII’s religious protections.

We recommend documenting the information you used to make an accommodation decision.

Learn more about protecting your business by visiting our COVID-19 Resource Center.