Sleeves Up?

Besides Federal employees and contractors, and employees of health care provides that receive federal reimbursements, only private employers that employ 100 or more employees are required to adopt a mandatory vaccine policy, maybe.

As reported by my law partner, Jerry “Jay” Stovall, in an update published on November 4, 2021 , the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard for COVID-19  in furtherance of an Executive Order from President Biden providing that “covered employees” (most public and private employers with 100 or more employees) must develop, implement and enforce a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to either (1) choose to either be vaccinated or (2) undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.  

Jay’s article further explains the employer’s policy must require vaccination of all employees, including all new employees, as soon as practicable other than those employees (1) from who a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices or observances that conflict with the vaccination (more on this last exception below).  Through several rushed and confusing updates, the timeline for compliance with the OSHA vaccine mandate has been pushed back several times and is now set for compliance not later than January 18, 2022.

However, a funny thing happened on the way to the company infirmary for your mandatory vaccine. 

On Friday, November 12th, the U.S. Fifth Circuit Court of Appeals out of New Orleans issued a nationwide injunction, staying OSHA’s vaccine mandate, which means OSHA cannot move forward with its vaccine mandate unless it can prove to the Court that its Emergency Temporary Standard is necessary to protect employees from “grave danger” due to exposure of “substances or agents determined to be toxic or physically harmful.” This leaves large employers, who would otherwise be required to satisfy the mandate, developing whiplash from watching all the medical, legal and political back-and-forth. In the meantime, my partners suggest it is advisable for employers that are covered by OSHA’s mandate to proceed with developing their vaccine policies under the assumption the injunction may be lifted.  Otherwise, stay tuned.  

While OSHA’s vaccine mandate for large employers remains on the judicial ping-pong table, there seems to be a consensus that employers are not prohibited from adopting a vaccine mandate in the workplace, regardless of the size of their business or staff, but with exceptions.  As Jay Stovall wrote in an article published on August 27, 2021, Federal law does not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA) and other Equal Employment Opportunity considerations.  The few judicial interpretations of a voluntarily-adopted vaccine mandate all seem to be consistent in this regard. 

As Jay further explains in his article, the ADA requires an employer to provide reasonable accommodations to employees who object to being vaccinated due to an existing disability, unless providing that accommodation poses an undue hardship on the business’ operations or poses a direct threat to the employee or others. If the vaccine mandate tends to screen out workers with a disability, the employer must show that unvaccinated employees pose a “direct threat” in order to take action against the employee.  If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

Whether an employee may claim a “sincerely-held religious belief” under Title VII as the basis for not complying with a vaccine mandate in the workplace is, well, not a simple answer as you probably suspect. Both Jay Stovall and my other partners, Fred Preis, Jr., Rachael Jeanfreau, and Phillip Giorlando have written extensively on this topic , and I would encourage you to read their materials for a detailed analysis. 

In short, the definition of “religion” is broad and protects the beliefs and practices beyond the more commonly-recognized religions.  As my partners suggest, employers should generally assume that an employee’s religious objection is based on a sincerely held religious belief and should only challenge the employee’s belief if the employer has an objective basis for questioning the employee’s objection. 

As my law partners also caution, employers must also be conscious to not adopt a vaccination mandate in a way that has a disparate impact on employees because of their disability, race, religion, color sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason for doing so.

This question has yet to be specifically answered by governmental policies or by the courts. We believe business owners should expect that independent contractors will be considered on the same level as employees for purposes of any vaccine mandate. While there are distinct legal differences between employees and independent contractors, those differences do not apply in the areas of health and safety of a workforce, so it is best to assume they will be treated equally for vaccine mandates.

The answer to this question has both a legal aspect and a practical one. With respect to the unchartered “legal” waters, the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) prohibits housing discrimination by real estate firms and homeowners.  Homeowners may not refuse to sell or lease property based on race, religion, color, gender, or national origin, and in some jurisdictions, sexual orientation.  Similar to the voluntary vaccine mandate in the workplace, there does not seem to be a specific prohibition based on vaccine status. 

However, the concern is that a real estate firm honoring a listing homeowner’s request might be viewed as having an unintended impact on one or more of the protected classifications under the FHA.  In a litigious environment, there are legal practicalities that real estate professionals should consider and may be better served by providing more information to potential listing clients.

Besides the legal risks, there are also practical considerations.  For instance, it will be likely very challenging for any listing agent to “police” the vaccine status of potential buyers and their agents.  If a listing client insists on using a “no vaccine, no entry” policy, real estate professionals should consider a written acknowledgment that the client understands there can be no guarantee that only vaccinated persons will enter the property.