October 11th Update: Governor’s Executive Order 

On October 11th, Governor Abbott issued an executive order that states, “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a customer, who objects to such vaccination for any reason of personal conscious, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  Governor Abbott also called on the Texas Legislature to pass a bill that would codify his executive order into state law. 

The executive order, and likely pending legislation, creates a direct conflict between state law and federal law for those employers with more than 100 employees or if the employer is a federal contractor.  The federal vaccine mandate does not allow for “reasons of personal conscious” or “prior recovery from COVID-19” as possible reasons for exemptions from the vaccine.

Some large employers in Texas have already made public statements that those businesses believe themselves to be bound by the federal law and intend to comply with the federal law despite the Governor’s executive order.  Most legal experts agree that both the OSHA federal requirement and the federal contractor requirement preempt the Governor’s order and any state statute on point.  We expect this issue to play out in the federal court system in the months to come and will likely be wrapped up in a larger challenge to federal vaccine mandate.  At this time, THLA’s legal department recommends that employers implementing a vaccine mandate take the Governor’s executive order into account until the federal mandate takes effect. 

September Federal Vaccine Mandate:

On September 9th, President Biden announced that all private employers with more than 100 employees must require their employees be vaccinated against COVID-19 or submit to weekly testing.  The requirement will affect more than 80 million workers across the United States, and it will have a profound impact on employers and employees across the nation.

The announcement has sparked a great deal of questions, confusion, and speculation about how the mandate will be implemented.  At this time, much remains unknown about the mandate, such as when it will take effect, how the minimum number of employees will be counted, who will pay for testing, exactly how medical and religious accommodations should be handled, and even whether the new mandate will survive the legal challenges that are sure to come.  We are waiting on the federal Occupational Safety and Health Administration (OSHA) to write the regulations, known as an “Emergency Temporary Standard,” or “ETS.”  We expect OSHA will take several weeks to write the ETS, and much depends on the specific details in the new regulations.

This article will set out what we know right now about the vaccine mandate based on the announcement and OSHA’s commentary to-date, and also note what we are hoping to get clarification on in the coming weeks. 

We know that “larger” employers will be covered:  The vaccination or testing requirement will apply to all private employers with more than 100 employees.  Based on OSHA’s commentary so far, we know:

We know that “larger” employers will be covered:  The vaccination or testing requirement will apply to all private employers with more than 100 employees.  Based on OSHA’s commentary so far, we know:

  • All employees of an organization, regardless of the employee’s location, will count towards the requirement. 
  • Part time and seasonal employees will count towards the requirement.

We do not yet know exactly how the ETS will handle separate business organizations that have common ownership.  Many are speculating the ETS will adopt a standard that is like the “integrated employer test” under the Family Medical Leave Act (FMLA), but we are waiting to get a firm answer. 

We are also awaiting confirmation that independent contractors will not count towards the number of employees, but OSHA may take an expansive interpretation of who is an “employee.”

When will the new vaccine requirement take effect?

We know OSHA wants to get the ETS out relatively quickly so it can have the maximum effect.  The ETS can last for up to six months, at which time is must be replaced by a formal rule.

We do not yet know the exact date the new vaccine mandate will take effect, or even precisely when the ETS will be issued.  In the past, it has taken OSHA several months to issue a new ETS, and many employment law experts speculate that OSHA will take enough time to methodically formulate the ETS so that it has a better chance of surviving legal scrutiny.

How will the testing option work?  Does the employer have to offer testing?  What types of tests are sufficient?  Who pays for the tests?

The topic of COVID testing is one of the areas where we are currently lacking the most clarity.  Based on the announcements from the Biden Administration and an OSHA press conference, it seems employers will have the option to either require vaccines for all employees or allow unvaccinated employees to submit to weekly testing.  It appears it will be entirely up to the employer to decide whether to offer a testing option, although an employer should note the sections of this article that pertain to religious or medical accommodations.

We anticipate that rapid antigen tests will be sufficient, rather than requiring a slower, harder to administer, and more expensive PCR test.  However, we are waiting on the wording of the ETS to determine whether this will in fact be the case.

We also do not have clarity regarding who will pay for the testing.  After visiting with employment law colleagues around the nation, we anticipate that if the employer allows testing as an alternative to vaccination, and the choice between vaccination and testing is solely the employees’ decision, the employer can require the employee to pay for the tests.  However, if the testing is the only option chosen by the employer, or the employee is using testing as a religious or medical accommodation, we suspect the cost of testing must be borne by the employer.

Can employees opt out of the vaccine mandate by claiming the vaccine violates a sincerely held religious belief?

We hope the ETS will contain details on how employers are to handle an employee’s claims of sincerely held religious beliefs.  We anticipate an employee’s claim that a vaccine mandate violates the employee’s sincerely held religious belief will be handled in a manner that is similar to other religious claims in the workplace.  This would mean that the employee would have to request a reasonable accommodation from the employer to be exempt from the vaccine mandate, and the employer would need to undergo an interactive process to determine what, if any, accommodation is appropriate.

We recommend accommodation requests be put in writing, and we have developed sample forms to assist in this process.  The employee should provide an explanation regarding the employee’s sincerely held religious belief and submit documentation from the employee’s religious leader indicating the religious belief prohibits the employee from receiving a COVID-19 vaccine. 

If the employee is able to provide documentation establishing a conflict between the employee’s sincerely held religious belief and vaccination, the employer must determine what accommodations should be made.  In most cases, having the employee submit to weekly testing will likely be the appropriate accommodation, and we suggest the employer pay the testing costs in this scenario.

Can employees opt out of the vaccine mandate if the employee requests a medical accommodation?

Medical accommodations follow an interactive process that is similar to the sincerely held religious belief interactive process.  The accommodation request should be put in writing, and we also have forms for this process.  The employee should provide documentation from the employee’s healthcare provider indicating the need for an accommodation as an alternative to receiving a COVID-19 vaccine.

If the employee is able to provide documentation establishing a conflict between the employee’s medical condition and vaccination, the employer must determine what accommodations should be made.  In most cases, having the employee submit to weekly testing will likely be the appropriate accommodation, and we suggest the employer pay the testing costs in this scenario.

What will be considered “proof” of vaccination, and will this trigger recordkeeping requirements?

We anticipate the ETS will set forth standards for what constitutes proof of vaccination, and also what records the employer must keep.  Under most OSHA regulations, records are required to be retained for at least the employee’s length of employment plus 30 years.  We do not know whether the ETS will require employers to retain copies of vaccination cards or test results for each employee for this period.

Will the ETS survive legal challenge?

It is reasonable to assume that the ETS will be challenged in the courts immediately upon its publication.  Much speculation abounds as to whether the applicability of the ETS will delayed due to a preliminary injunction, and such a delay seems likely. We anticipate much of the litigation will center on whether OSHA’s enactment of this particular ETS exceeds the agency’s statutory authority, and this position is certainly not a frivolous one. 

That stated, we do recommend that employers with more than 100 employees begin planning for the ETS now. 

What should employers do now, before the ETS is released?  Start developing a plan.

  1. Begin to estimate how many employees are currently vaccinated versus those that are not.  Some employers have begun polling their employees to get a sense of the number of employees who will be required to get vaccinated or undergo testing when the ETS goes into effect. Keep any information and records gathered confidential.
  2. Start to consider whether you will require vaccines or whether you will proceed with a weekly testing regime.  If testing will be an option for all employees, begin research on testing cost and adequate acquisition of testing supplies. If vaccination will be generally required by the employer, begin research on acquiring testing supplies for those claiming religious or medical accommodations.
  3. Develop a system for tracking vaccination status and also testing results.
  4. Develop a policy and protocol for medical and religious accommodations.
  5. Determine how the company will handle employees who refuse to be vaccinated.

THLA will be back with more information.

As the vaccine mandate issue continues to develop, THLA will keep you up to date on what you need to know.  If you have any questions at this time, please do not hesitate to reach out to a THLA attorney by calling 512-474-2996.

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