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Vaccine mandates are impacting hundreds of thousands of employees in the Washington region and across the country. Here is a summary of the coverage, legal exemptions, and accommodations for the pending vaccine mandates. For more information or legal assistance, contact Merritt Green, who leads General Counsel P.C.’s employment law practice, at firstname.lastname@example.org.
Coverage: Federal Employees
Executive Order 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees” requires federal employees, with exemptions as permitted by law, to be fully vaccinated by Nov. 22 (final dose by Nov. 8). Failure to comply will result in disciplinary action (since failure to receive the vaccine is an act of misconduct), up to and including removal or termination. The mandate includes remote workers.
Coverage: Federal Contractors / Subcontractors: Executive Order 14042 mandated Covid-19 vaccination requires “covered contractor employees” working on a “covered contract” at a “contractor workplace location.” If within these perimeters, which most government contractors will be, employees must be vaccinated by Dec. 8. This means employees must have their first Johnson & Johnson second Pfizer or Modena vaccine no later than Nov. 24. The mandate includes remote workers.
The definition of “covered contract” is broad and beyond scope of this article. A “covered contractor employee” is defined as “any full-time or part-time employee of a covered contactor working on or in connection with a covered contract or working at a covered contractor workplace.” This includes employees who are not themselves working on or in connection with a covered contract,” such as human resources, billing, and legal review because that work is “in connection with” a covered contract.
Finally, a “contractor workplace location” is defined as “any location where employees work on a covered contract, which may include both the contractor’s and the federal government’s location.” The guidance provided by the Safer Federal Workplace Task Force states that employees working remotely on a covered contract, even if they never enter a covered contractor workplace, are subject to the order’s requirements.
Coverage: Employers over 100 employees: Employers with over 100 employees (that are not government contractors) are anxiously waiting for OSHA to provide the Emergency Temporary Standard that will require employees to be vaccinated or tested weekly. On Sept. 10, Department of Labor officials stated that remote workers not working in contact with others would not be covered by the emergency rule provided they don’t come to the workspace.
Coverage: Private Employers Under 100 Employees: The EEOC has stated that the federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA.
Exemptions: Medical / Disability: Employees can request exemption based upon a disability pursuant to the Americans with Disabilities Act (ADA).
Exemptions: Pregnancy: Pregnant employees may request “job adjustments or . . . exemptions from a COVID-19 vaccination requirement.”
Exemptions: Religious Belief: As discussed within the Sept. 29 “Ask General Counsel” article, “Religious Exemptions to Mandatory COVID-19 Vaccination Policies”, employees are entitled to exemption from a mandatory vaccination policy for sincerely held religious beliefs. For more information on religious exemption and accommodations, please see this webinar conducted by General Counsel P.C.
Accommodation: Direct Threat: Once an employer determines that an employee is legally entitled to a vaccine exemption pursuant to the ADA or Title VII for disability, pregnancy or religious reasons, the employer needs to determine whether there is a “direct threat” caused by the unvaccinated employee and whether there is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
Accommodation: Reasonable Accommodation without Undue Hardship: If the employer determines that an individual may pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate the threat. Undue hardship under Title VII means “more than minimal cost or burden on the employer.” It is a less stringent standard than the disability-related standard under ADA. Factors relevant may include: (1) the type of workplace, (2) the nature of the employee’s duties, (3) the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and (4) the number of employees who will in fact need a particular accommodation.
Conclusion: Employers and employees throughout the United States are struggling with coverage, exemptions, and accommodations for vaccine mandates. General Counsel P.C. attorneys are actively helping clients with these matters. If we can help you, please contact email@example.com.