Vaccine

NYC’s Latest Expansion of its Vaccine Mandate – What You Need to Know

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Author: Laura Friedel

On December 6, 2021, NYC mayor Bill DeBlasio announced that all private-sector workers in the city will be subject to the vaccine mandate, effective December 27. The following day, however, Judge Frank P. Nervo in the Supreme Court of New York suspended the mandate pending a hearing scheduled for December 14, 2021. If upheld, the mandate requires two vaccine doses, unless a person received Johnson & Johnson’s single-dose vaccine, and will impact 184,000 businesses.

Mayor DeBlasio’s action closely followed action in Florida where a new standard technically permits vaccine mandates, but only if employees are permitted to opt out by submitting an exemption statement on one of five grounds (medical, religious, COVID-19 immunity, compliance with regular testing at the employer’s cost, of agreement to comply with reasonable PPE requirements). The new NYC and Florida requirements are just the latest in a string of state and local regulations around vaccine mandates (some requiring, some prohibiting, and some finding a place in the middle).

Earlier this year, an OSHA Emergency Temporary Standard (ETS) was issued. The ETS would require vaccination or weekly testing for employees of employers with 100 or more employees, but this requirement is in flux while courts hash out arguments regarding its enforceability. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the ETS, and the U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over the ETS legal challenges. The Department of Labor has filed a motion to lift the stay entered by the Fifth Circuit, but in the meantime, OSHA has suspended implementation and enforcement of the ETS.

With the ETS in limbo and local jurisdictions implementing their own vaccine mandate requirements, businesses around the country are wondering what this means for them. The following are three recommendations to keep in mind:

  1. Consider local rules and regulations regarding vaccine mandates. In large part, your obligations will depend on where your employees are located and whether you are a government contractor or in the health care industry. If the ETS becomes effective, it will preempt state and local requirements that don’t go as far to require vaccines (such as in Florida), but until then, state and local requirements limiting employers’ right to require vaccines will prevail.
  2. Make a decision internally as to whether, if the ETS becomes effective, you will offer testing as an option for all or only for those who can’t get vaccinated for medical, religious, or similar reasons. Also, think about how you plan to conduct testing (such as requiring employees to get tested on own and turn in proof or testing employees on-site).
  3. Remind employees that management is following the situation and urge employees to get vaccinated now. Businesses can send a letter to their employees letting them know that the company is monitoring the new rules, including state and local requirements and the OSHA ETS, and that you will be following any rules that are enacted in your jurisdiction. As such, employees are strongly encouraged to get vaccinated now so that they are in compliance if/when it becomes effective. Additionally, if testing only will be offered to those employees with a bona fide need for an exception, you should let them know that they need to request an accommodation by a specific date so that the company has enough time to review the requests.

If you have any other questions regarding COVID-related mandates or other COVID-related issues, a member of our Labor & Employment Group would be happy to speak with you.

Changes Coming to the Illinois Health Care Right of Conscience Act to Close COVID loophole… in June 2022

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Author: Becky Canary-King

The Illinois legislature has approved an amendment to the Health Care Right of Conscience Act (“HCRC”) which would limit employees’ ability to use the law to avoid workplace vaccination mandates.

HCRC, which was enacted in 1977, prohibits discrimination against individuals for their “conscientious refusal” to receive “any particular form of health care services contrary to his or her conscience.” The Act also makes it unlawful for employers to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant for the applicant’s refusal to receive any form of health care services contrary to his or her conscience.

The original intent of the bill was to allow health care providers to refuse to provide contraceptives or abortion services if it violated their conscience. However, some individuals have argued that the broad language of HCRC provides a shield for employees to avoid COVID-19 testing and vaccination mandates.

The Amendment would add language stating that it is not a violation of the Act to institute and enforce COVID-19 requirements in the workplace and other institutions. The proposal does not interfere with employees’ right to receive reasonable accommodations for their sincerely held religious beliefs.

Governor J.B. Pritzker is expected to sign the amendment, which would go into effect in June 2022.

EEOC Issues New Guidance on Religious Objections to COVID-19 Vaccine Mandates

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Author: Laura Friedel

On Monday, October 25, 2021, the EEOC released much-awaited guidance on how employers should handle employee requests to be exempted from vaccination requirements because of religious beliefs. The new guidance is in the new Section L of the EEOC’s Technical Assistance.  Here are some highlights:

  • Employees must tell their employer if they are requesting an exception to COVID-19 vaccination requirements because of a conflict between that requirement and their sincerely held religious beliefs, practices or observances.  However, they don’t have to use any “magic words” in making their request.
  • Employers should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if the employer has an objective basis for questioning either the nature or the sincerity of a stated belief, they can make a limited factual inquiry and seek supporting information. 
  • The definition of “religion” under Title VII includes both traditional religious beliefs and non-traditional religious beliefs, but it does not include political, social or economic views or personal preferences.  Employees may be asked to explain the nature of their belief that requires the accommodation.
  • Even if an employee’s sincerely held religious belief prohibits them from being vaccinated, the employer can still refuse to provide an exception to a vaccine mandate if it would cause the employer an “undue hardship.”  While the EEOC notes that in many cases it is possible to accommodate employees’ requests for exceptions to a vaccine mandate (for instance, by allowing work-from-home or requiring the employee to take extra measures (such as frequent testing), it also acknowledges that an employer can’t be required to bear more than a “de minimis” cost in accommodating an employee’s religious belief – for instance, if it would impair workplace safety, diminish efficiency or cause coworkers to carry the employee’s share of potentially hazardous or burdensome work.  The key here is that it is a very fact-specific inquiry, so employers should analyze each request individually, rather than setting a broad rule.
  • Just because one employee is granted an exception from a COVID-19 vaccine mandate doesn’t mean that it needs to be granted to others.  Again, the key is the particular facts and circumstances, so employers should look at the employees’ duties, how many people they come into contact with, etc.
  • Even where an employer is required to provide an accommodation, it is not required to provide the particular accommodation requested by the employee.  So if there’s another accommodation available that would allow the employee to perform their duties and would not cause an undue hardship, it can be offered, even if it’s not the accommodation the employee requested.
  • Employers may revisit accommodations based on changed circumstances, but as a best practice, any changes should be discussed with the employee in advance so that alternate accommodations can be considered.

What is clear from the EEOC’s guidance is that requests for exceptions to vaccine requirements for religious reasons need to be considered on a case-by-case basis. It is also important to consider state and local requirements that may limit vaccine mandates.  As such, we recommend consulting with an employment attorney in responding to such requests.

Masking Requirements in the Workplace: What Employers Should Consider

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Author: Becky Canary-King

The CDC has lifted mask requirements for vaccinated individuals, what does that mean for employers?

Earlier this month, the CDC issued new guidance that Fully Vaccinated individuals can resume activities without wearing a mask or social distancing, except where required by state or local guidelines. Illinois and Chicago subsequently issued new orders affirming that individuals who are Fully Vaccinated are not required to wear a mask. “Fully Vaccinated” means:

  • 2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or
  • 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Options for Employees

Given these recent changes, Illinois employers now have a choice: to change their workplace rules to allow Fully Vaccinated individuals to go “maskless,” or they can keep current masking requirements in place (either temporarily or for a longer period). Of course, employers with employees outside Illinois need to check state and local requirements for the locations where they have employees.

Employers who wish to allow Fully Vaccinated employees to not wear a mask in the workplace are required to confirm that an employee is, in fact, Fully Vaccinated, prior to allowing them to go maskless.  This can be accomplished by requiring employees to present proof of vaccination or by requiring that employees certify that they are Fully Vaccinated. As a reminder, the information provided to confirm vaccination status needs to be treated as confidential medical information.

Because of issues around confidentiality, we recommend that employers who are not mandating that employees be vaccinated make clear that while Fully Vaccinated individuals may request to go maskless by submitting the requested documentation, it is their choice. In other words, regardless of vaccination status, employees will be required to wear a mask unless they request to go maskless and provide the required documentation. 

Employers should also be aware that the Chicago ordinance that allows Fully Vaccinated employees to go maskless also requires that employers have all employees who are reporting to the workplace to self-certify each day or shift that they are free of COVID-19 symptoms.

Options for Members of the Public

Under these new Illinois standards, employers also have the obligation to “seek to ensure” that customers who are not Fully Vaccinated wear a mask. It’s not clear from the Governor’s order whether this means that employers are required to independently confirm vaccination status prior to allowing a customer or visitor to be maskless in the workplace. Currently, large restaurants and retailers have taken different approaches to public masking requirements, but the fact remains that employers’ general duty to maintain a safe workplace continues to apply and should be considered before changing customer mask requirements. 

Looking Forward

Illinois Governor J.B. Pritzker announced that Illinois plans to fully reopen and enter Phase 5 of its COVID plan on June 11, “barring any significant reversals in our key COVID-19 statewide indicators.” Governor Pritzker has indicated that Illinois will continue following the CDC’s masking guidelines in Phase 5.

Navigating the Vaccine: Considerations Employers Should Keep in Mind

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Author: Labor & Employment Group

Whether your business chooses to require the vaccine or allow employees to get vaccinated at their option, all employers are facing new challenges managing through this phase of the pandemic. Below are some considerations employers should be keeping in mind:

  • Continue to Require Safety Measures. The CDC continues to recommend employers require social distancing, face masks, and other safety measures in the workplace. While the CDC has indicated that fully vaccinated individuals can gather in small groups, it has not revised its recommendations regarding workplace safety.
     
  • Provide Resources for Employees. Many individuals are still having difficulty finding and traveling to vaccine appointments. Employers requiring or encouraging vaccination should consider what resources they can provide to assist employees with the process. Options include sharing local resources for appointment scheduling, providing time off, and providing other monetary incentives such as gift cards for employees who get vaccinated.
     
  • Consider Remote Work Options Moving Forward. With many employees working remotely for the first time during the pandemic, we anticipate greater demand for remote work moving forward. Employers should take time now to consider whether they will allow ongoing remote work once all employees can safely return to the workplace, and the potential implications for hiring and retention.

For more questions on COVID-19 vaccination policies in the workplace, please contact any member of our Labor and Employment team.

Chicago’s New Proposed Vaccine Anti-Retaliation Ordinance

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On Tuesday, April 13, Chicago’s aldermen unanimously approved Mayor Lori Lightfoot’s proposed new anti-retaliation ordinance. Under the proposed ordinance, Chicago employers would be prohibited from taking any adverse action against employees who take time off to get vaccinated.

Additionally, employers that choose to mandate vaccinations would not be able to require employees to get vaccinated during non-work hours. Instead, employees must be allowed to get the vaccine during working hours and must be compensated for the time to get the vaccine, up to four hours per dose. Employers may not require employees to use paid sick time to meet this requirement.

Employers without mandatory vaccination policies would be required to allow employees to take time off work to get vaccinated. Employees may use accrued sick leave for this purpose.