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Monday, May 16, 2022

Employers Seek COVID Clarity

Ahead of the implementation of new federal vaccination mandates, local employers have plenty of questions. 

The federal rules will require all workers at businesses with 100 or more employees to be vaccinated against or regularly tested for COVID-19.

“The second President Biden made his announcement, we started getting calls from employers that were concerned about having to force the vaccination, or what the rules might say,” Ryan Haws, an employment attorney with the Camarillo firm Light Gabler, said. “And I think the biggest frustration is that they don’t know what the rules are.”

President Joe Biden announced on Sept. 9 the administration’s orders to the Occupational Safety and Hazard Administration (OSHA) to develop a new Emergency Temporary Standard that will apply to all U.S. businesses with 100 or more employees. While details of the official guidelines have not yet been released, the mandate will dictate all employees be fully vaccinated against COVID-19 or undergo weekly testing for the virus, a requirement which impacts about 80 million people. Exceptions will be made for those who have a medical condition or sincerely held religious belief which prevents them from receiving the vaccine. 

Also impacted by the mandate: A further 17 million workers employed in health care facilities that receive Medicare or Medicaid funding, several million employees of the executive branch and contractors who do business with the federal government. All will be required to receive the vaccine and will have no option to test out. Employers across sectors must provide paid time off for employees to receive the vaccine and will be subject to $14,000 fines for violations of the order.

The emergency standard may remain in place for six months, after which it must be replaced by a permanent OSHA standard, the implementation of which follows a more formal rulemaking process.

‘Thin labor market’

In the Valley, employers such as Amgen Inc. in Thousand Oaks and the Walt Disney Co. in Burbank have already announced and implemented similar policies following guidance from the Equal Employment Opportunity Commission (EEOC) and will have to determine if their internal rules are compliant with the new mandate. 

“Everyone is kind of concerned as to what is going to happen next. Some of the concerns that my clients have in particular is who’s going to pay for it,” Haws said. “They’re also concerned that if they are forced to mandate the vaccine for their employees, and they have employees who refuse – not necessarily because they have a medical or a sincerely held religious accommodation issue but because for whatever reason they don’t want to be vaccinated – that they’re going to lose employees. And it’s already a thin labor market.”

Also, the changing rules regarding masks, social distancing and vaccines have been a source of ongoing frustration for business owners and human resource departments trying to navigate health challenges while maintaining their companies. 

“This entire COVID process has been a limbo for HR people. Because if you really think about it, going back to March 2020, especially here in California, we have had competing voices as to who’s in control of human beings,” Mark Wilbur, chief executive of HR consultancy Employers Group, said. “One of the challenges is that you’ve got things coming from Washington, D.C., things coming from the CDC, the governor’s office, the legislature, the counties, the cities and then Cal OSHA. And keep in mind, every one of those voices is thinking they’re in charge and implementing things that are oftentimes at cross purposes with each other.” 

Stuart Waldman, president of the Valley Industry & Commerce Association in Van Nuys, said the organization’s board recently discussed vaccine mandates when the city of Los Angeles began to consider the policy for indoor businesses and public spaces, prior to the announcement of the federal rule. 

“The conversation really pointed to wanting consistency, wanting the businesses to have a consistent plan that was uniform, and I think that’s what (the federal mandate) does,” Waldman said. 

Most business owners, he said, are tired of inconsistent rules and just want to keep their doors open. 

“It also takes the onus away from the business. Because in many cases, you have businesses that were instituting policies requiring vaccination, and they were immediately getting sued, which is extremely costly. But when it’s the government making that decision, to be vaccinated or required testing, it frees up the business and then also keeps the business from getting sued for that policy.”

Exemptions

The two exemptions for the mandate will be for medical conditions and sincerely held religious beliefs that prevent an employee from being vaccinated for COVID-19. For employers, navigating exemptions based on these grounds can be difficult due to employee protections granted through the EEOC, which open the business up to lawsuits if violated. 

“The disability exemption is easier for employers to understand and process. The employer can provide their employees a certification form and ask their healthcare providers to fill it out.  Without disclosing the diagnosis, the healthcare provider would confirm there is a genuine medical reason why this person can’t get the vaccine,” Sue Bendavid, employment attorney for the Encino firm, Lewitt Hackman, said. “For religion, it’s more complicated because the EEOC has issued guidance which says the employer should ordinarily assume that an employee’s request for a religious exemption is based on a sincerely held religious belief.  Absent an objective basis for questioning the sincerity of a particular belief, the employer should not second guess the employee. We are, in essence, to assume the belief is sincere and genuine because the definition of “religion” is broad and protects beliefs which may be unfamiliar. I’ve had employers ask me ‘Can we get a note from a pastor or from a rabbi?’ Or from a priest or other cleric? But the answer is usually no – absent objective evidence – the EEOC seems to indicate you are to presume the employee is telling you the truth.”

Still to be determined will be the federally mandated procedures for workers who remain unvaccinated, with an exemption or not. Rules surrounding reasonable accommodations, such as remote work, also remain undetermined. In preparation, employers are beginning to craft internal policies to determine how to handle such cases. 

“For those employees that have not complied by the stated deadline, and don’t have a religious or disability exemption, some clients have been electing to suspend employment; pending receipt of proof of vaccination,” Bendavid said. “For example, some employers have told employees “we’re going to suspend your employment for 30 days to give you time to provide the required proof.’ Other clients are choosing to terminate relying on the applicable governmental orders which mandate vaccines in certain industries, saying “the law says you have to be vaccinated and unless you submit proof or have an exemption, we have no choice but to part ways.”

Until the final details of the federal OSHA ETS are announced, businesses in the region remain in limbo between existing EEOC and Cal OSHA guidelines which currently set the rules requiring masks for unvaccinated employees. 

“I do anticipate that the fallout is going to be coming as people start to realize what the requirements are,” Waldman said. “Especially the ones where there’s a complete vaccination requirement.”

Katherine Tangalakis-Lippert
Katherine Tangalakis-Lippert
Katherine Tangalakis-Lippert is a Los Angeles-based reporter covering retail, hospitality and philanthropy for the San Fernando Valley Business Journal. In addition to her current beat, she is particularly interested in criminal justice topics, health and science stories and investigative journalism. She received her AA in Humanities from Moorpark College in 2016, her BA in Communication from Cal Lutheran University in 2019 and followed it up with a MA in Specialized Journalism from USC in the summer of 2020. Through her work, Katherine aspires to help strengthen the fragile trust between members of the media and the public.

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