Editor's Note: On November 5, 2021, OSHA published the COVID-19 Vaccination and Testing Emergency Temporary Standard. For more details, check out this must-read blog OSHA's Vaccine Mandate for Large Employers: What to Do Now? The post was created by the legal team at Wagenmaker & Oberly and is referenced with permission. The blog post gives a detailed overview on the legal challenges, requirements of the Vaccine ETS, employee count threshold, compliance problems with the Vaccine ETS, employer penalties, and accommodations and exemptions. 

President's Announcement about Vaccine Mandate for Employers Generates Questions

According to the White House’s new COVID-19 Action Plan, any employer with more than 100 employees will soon be required to ensure their employees are either fully vaccinated against COVID-19 or tested for the virus weekly.

This rule has generated many questions from ministries since it was first announced on September 9, 2021. Most of these will have to wait for answers until the actual requirement is published.

Still, ministry leaders should actively monitor the development of this “vaccine mandate” and consider how they may need to respond.

When will the mandate take effect? 

Employers should know that this mandate has not yet been implemented. On September 9, President Biden announced that the Occupational Safety and Health Administration (OSHA) was developing the rule to be implemented through an Emergency Temporary Standard (ETS). This process may take a few weeks. After the rule is published, employers likely will be given some time to prepare for their new obligations before it goes into effect.

Here's what employers, including ministries, should be doing right now:

• Determine if your ministry must comply. Currently, the plan is to include employers with 100 or more employees. It’s unknown which workers count, but until guidance is announced, assume the count will include an aggregate of all your employees, regardless of status, across all your ministries.

• Count how many employees are fully vaccinated. Knowing the number can inform your approach to the mandate and help communicate your policy. The ETS may require that employees supply proof of vaccination status.

• Plan for accommodation requests. First, learn how religious, medical, and disability exemptions are defined by the Americans with Disabilities Act and Title VII of the Civil Rights Act (Section K—Vaccinations). Then create a plan for how to handle requests. Note: mishandling of an exemption request may violate anti-discrimination laws.

• Research logistics of testing and tracking the unvaccinated. Questions to consider include onsite or offsite testing, when employees get tested, and who bears the cost of testing. See if your state has a law that requires employers to reimburse its employees for business expenses.

• Consider requirements for paid time off. The questions here are whether you can require employees to use paid time off to become vaccinated or to recover from possible side effects, or if your ministry will set up a new type of paid leave just for this purpose. Be sure to look into any existing requirements by OSHA or your state regarding COVID-19 and paid time off.

• Address remote-worker requirements. If the ETS plan allows an option, consider if you will require remote workers to be vaccinated or if you will offer remote work as an alternative to mandatory vaccination or weekly testing.

After considering the above, you can begin to outline a written policy and a communications strategy while waiting for the final ETS plan. You’ll also want to think about how to keep information confidential, who has access to it, and where and how you store records and documents.

By simply beginning the discussion, your ministry will be in a better position to respond to the mandate. The Centers for Disease Control offers help with a Workplace Vaccination Program.

Will the rule face legal challenges? 

Many parties, including multiple governors, have already stated their intention to challenge the rule in court. These potential legal challenges could delay the rule’s effective date. Some commonly discussed objections include:

• OSHA may use an improper procedure when it implements the rule
• OSHA will exceed its authority granted by Congress when it implements the rule
• The rule could constitute a violation of religious liberty under the First Amendment

Of course, any legal arguments against the mandate at this time are highly speculative because the exact details of the rule will not be known until publication. Ministries should closely monitor any litigation because it may delay or even invalidate the mandate.

Will religious exemptions apply? 

There has been a lot of confusion about religious exemptions during the pandemic. In recent months, various employees have objected that receiving a COVID-19 vaccine would violate their religious beliefs. Some assume that a religious exemption is granted with no questions asked. However, that is not always the case.

Ministry leaders should be aware of any litigation regarding religious exemptions to the White House’s requirement for employers. Religious beliefs may not exempt employees from this mandate for two reasons:

1. When an employee objects to a requirement on a religious basis, an employer is typically required to consider if a reasonable accommodation can be made. The mandate provides weekly testing as an alternative. Such a test may not violate an employee’s religious beliefs and could be viewed as a reasonable accommodation.

2. Generally, religious exemptions are not always blanket exemptions from government regulation. If sufficient public interest supports the regulation, it may prevail despite conflicting with an individual’s religious beliefs.

Read Vaccinations: Responding the Religious Exemption Requests from Attendees

What other details are known about the rule? 

Not much. There are a few details to watch for when the rule is published. For example, the White House announcement did not mention who would be responsible for paying for tests, how the 100-employee threshold would be counted (i.e., whether it includes subsidiaries), or how the rule would be enforced.

Overall, employers should be watching this mandate closely and be prepared for implementation. While many lawsuits will likely be filed to contest the rule’s validity, it remains entirely possible that the rule will prevail.

Posted September 2021. Updated October 2021.

The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.