Jason Matthews, a Dayton attorney specializing in employment law who often represents employees, has received numerous calls in the past week from workers concerned about these mandates.
“I’m receiving a lot of inquiries from employees who have health conditions, and they’re concerned about receiving the vaccines in light of the health conditions. I’m also receiving inquiries from employees who have concerns from a religious perspective. And finally, I’m receiving inquiries from employees who just don’t believe that the government or that their employer should be able to mandate a vaccine,” he said.
Jeffrey A. Mullins, a Dayton attorney with Taft specializing in employment law who often represents employers, said he has also gotten many calls about the mandates.
“Some employers are very pro-vaccine and for them, this has given them a boost to do it,” he said. “But there are other employers who are really concerned because they have a lot of employees who may have been outspoken and saying, ‘You know, I really don’t want to do this for whatever reason. And if I’m forced to do it, I will quit.’ And right now, it’s no secret, there’s just a really tight job market.”
Who must get vaccinated or tested under Biden’s new mandates?
The new federal vaccine mandates will affect federal employees and federal contractors; most health care workers; and employees at private businesses with over 100 employees. The Biden administration has taken three separate steps to institute these directives.
Federal employees: In an executive order, Biden mandated federal employees be fully vaccinated, with no option for regular testing. Federal workers must be fully vaccinated before Nov. 22. In another executive order, Biden made the shot compulsory for federal contractors. However, there will be a ramp-up period and before being contractually required to get vaccinated, onsite contractor employees who are not fully vaccinated will have to provide proof of a negative COVID-19 test.
Health care workers: The Centers for Medicare & Medicaid Services announced all staff within Medicare- and Medicaid-certified facilities will need to be vaccinated with no option for regular testing. That order encompasses most health care workers, including employees at nursing homes, hospitals and home health agencies.
Employees of large private companies: Biden directed the Occupational Safety and Health Administration to create an Emergency Temporary Standard requiring that private businesses with over 100 employees require either vaccination or weekly testing. The standard to be released in the coming weeks will last six months.
This mandate will not affect public employers such as city and county governments or public school districts. Biden has called on governors to require vaccinations for public staff, but Ohio Gov. Mike DeWine has said he does not back the president’s plan.
Will there be exemptions?
Legal experts believe all these vaccine mandates will likely have some sort of medical and religious exemptions, but how difficult it will be to get one remains to be seen.
The Americans with Disabilities Act could potentially be evoked to prevent discrimination against those with a medical diagnosis that makes the vaccine riskier for them, Mullins explained.
However, few medical conditions exist that experts believe are cause for not getting the coronavirus vaccine. The only major exempt group the Centers for Disease Control and Prevention say might want to avoid the vaccine is those who have a known allergy to the ingredients in the vaccines or a severe allergic reaction to the first dose. This is rare and less than one in a million people experience a severe allergic reaction to a coronavirus vaccine.
Title VII of the Civil Rights Act of 1964 prevents discrimination based on sincerely held religious beliefs. But determining what constitutes a sincerely held religious belief can be tricky. Many major organized religions don’t object to and some even advocate for coronavirus vaccines. However, according to the Equal Employment Opportunity Commission, a religious belief does not have to be recognized by an organized religion and it can “seem illogical or unreasonable to others,” but it cannot be based solely on political or social ideas.
“It’s tough for employers. To what degree do you want to be the religion police?” Mullins said. “Most employers historically have taken the position that if somebody tells me it’s sincerely held and I don’t have some contradictory evidence, I’m going to say fine.”
It’s unclear how those who receive exemptions will be accommodated, Mullins said.
“Because that doesn’t mean you just get to come into work in the same way you did before. In cases like this, the employer then usually comes back and says, ‘Well, OK, here’s the alternative, here’s the workaround, here’s the accommodation.’ And in some instances, it might be that you’re going to have to wear a mask, and you’re going to have to socially distance and we’re going to have you work in this area over here.”
What gives Biden the authority to do this? Will legal challenges be successful?
Legal challenges to all three mandates could come from states, trade groups, employers, workers or unions. Some have already announced their intentions to challenge the mandates.
OSHA derives its powers from the Occupational Safety and Health Act passed by Congress in 1970. To establish an emergency rule like this one, the agency would have to demonstrate that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and that the emergency standard “is necessary to protect employees from such danger.”
Ohio Attorney General Dave Yost and 23 other Republican attorneys general sent a letter to Biden on Friday threatening litigation over the mandate on private sector employees. The letter argues that since vaccinated people have a small chance of hospitalization or death from COVID-19, there is no “grave danger” and that the COVID-19 virus is not the kind of “substance,” “agent” or “hazard” to which the law refers.
“As proposed, the federal vaccine mandate is not only unlawful, its guise as a workplace safety measure further divides those still considering the vaccine,” Yost said in a statement on Facebook. “I am vaccinated, but the president didn’t force me to — nor should anyone else be required by federal executive edict.”
Of the three mandates, the one for private employees is the most likely to be struck down, Mullins said.
“It’s hard to make a prediction on this, but it’s a high bar to have one of these Emergency Temporary Standards,” Mullins said. “You really have to show there’s some imminent threat. Clearly COVID is deadly and it’s very serious, but it’s also something that employers did respond to and many employers were able to sort of contain and protect employees from … And there’s also a question of if it’s really an imminent threat, why do we draw a line at 100?”
The other two mandates will likely be challenged as well, but Biden is on stronger footing there, Mullins said.
“Essentially when you’re the federal government and you’re doing business with companies and you want to say to those companies, ‘In order to do business with me, I’m going to tell you, you have to do the following things,’ government does that all the time,” he said. “And it could be drug testing. It could be safety training. It could be requiring certifications. Government can do that contractually and say, ‘You don’t have to do business with us, but if you want to do business with us, you have to do the following things.’”
There’s also the possibility that a federal judge will order a temporary stay, preventing a mandate from going into effect while legal challenges make their way through the courts.
Can employees who leave because of the mandates get unemployment?
It would be difficult for an employee to claim unemployment after leaving a job over a vaccine or testing requirement, Mullins said.
“If the employee resigns because of this, it’s very tough to collect unemployment if you’ve resigned. If the employee says, ‘I’m not getting the vaccine and you’re going to have to fire me,’ then at least you know you have a question of I was fired and was that with or without cause. Do I have a right to collect unemployment? But if the employer had a policy in place, required it, everybody knew about it, it was announced in advance — I think it’s tough to get unemployment in that situation,” he said.
Most employees will not be able to collect unemployment unless they are pushed out because an employer did not accommodate a disability or religious belief, Matthews said.
How will OSHA enforce its mandate?
OSHA is a small agency with not a lot of money or manpower.
“OSHA doesn’t just go knocking on doors from company to company. OSHA will enforce this like they enforce everything — as incidents arise, they could show up there,” Mullins said. “If there’s a mass outbreak of COVID at a company, they could see that and go to the company and say, ‘I’d like to see your policy, and I want to see your vaccination records.’”
Mullins said he suspects pro-vaccine employees will likely report their employers for violations.
“Also, if OSHA shows up for anything — for example, if somebody falls off a ladder, and it’s reported, and OSHA shows up to investigate why the person fell off the ladder — they’re gonna ask the employer I need to see all your information on your current vaccine policy, because it’s a national emphasis program,” he said.
How will fines likely be doled out? Per business or per violation?
The Biden administration has promised that businesses could face up to $14,000 fines for noncompliance.
“Businesses can rack up huge fines,” Mullins said. “Employers would welcome the idea that it’s at max a $14,000 fine for whatever they’re doing. And maybe they could try to be very kind and generous and roll it out that way. But normally the way it works with OSHA is it would be a per violation fine.”
Will private employees who work at home be affected?
Those who work from home full-time and never go into an office would probably have a good argument that the mandates shouldn’t apply to them, Matthews said.
“On the other hand, if we kind of equate that to other OSHA regulations, even if an employee is working on his or her own, away from other employees, and the government says that for that type of job you have to wear a hard hat, then the employee still has to wear a hard hat. Even though the only person that the employee is really placing at risk is him or herself,” he said.
Have questions about COVID-19, face masks, vaccines, testing, quarantining or anything else pandemic-related? Send them to jordan.laird@coxinc.com. Answers will be published regularly in print and online.
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