Vaccine Mandate Implementation Raises Issues for Employers

The COVID vaccine mandate and testing requirements for employers with at least 100 employees has led to employers seeking clarification. The Equal Employment Opportunity Commission (EEOC) has brought its first American with Disabilities Act (ADA) related COVID lawsuit while the Safer Federal Workforce Taskforce issued guidance on the COVID vaccine mandate for federal employees. Additionally, the annual minimum wage update for federal contractors has been released by the Department of Labor.

Employers Raise Questions About Vaccine Mandate – The Consumer Brands Association wrote a letter to President Biden seeking clarification of the vaccine mandate included in the Administration’s Path Out of the Pandemic plan. The letter raises questions concerning vaccinations, testing and operational issues.

Among the vaccination issues are:

• What is the proof of vaccination documentation requirements and how will vaccine booster shots factor into compliance?
• Do employees need to be fully vaccinated to work?
• How will natural immunity from having contracted COVID-19 be addressed?
• Will the government centralize vaccination tracking, or will employers need to manage it?

Questions about testing include:

• Is there a single testing standard that must be met to comply with the negative test result requirement?
• What documentation of a negative test result is required and how long does test result records need to be kept?
• Can an employee keep working pending receipt of test results?
• For employees who decide not to be vaccinated, is the employer or employee responsible for securing and paying for testing and does paid time off need to be given to employees who are tested on a weekly basis?

Operational concerns focus on:

• What is the timeline for compliance?
• How does the mandate impact collective bargaining agreements?
• Does the federal requirement preempt existing state obligations?
• Will there be exemptions based on religious beliefs and disabilities?

Several states have indicated that they intend to file lawsuits challenging the vaccine requirement.

EEOC Files First COVID-19 Related ADA Case – The EEOC filed its first lawsuit in the case of Equal Employment Opportunity Commission v. ISS Facility Services, Inc. alleging an employer unlawfully denied a request for an accommodation that was made by an employee with a disability and subsequently terminated her for making the request. 

According to the EEOC, from March 2020 through June 2020, ISS Facility Services required all its employees to work remotely four days per week. Starting in June 2020, the company re-opened its facility and Ronisha Moncrief, a health and safety manager requested an accommodation to work remotely two days per week and to take frequent breaks while working onsite due to her pulmonary condition that causes her to have breathing difficulties and placed her at a greater risk of contracting COVID-19.

Although the company allowed other employees in her position to work remotely, her request was denied, and she was subsequently fired. The EEOC, which filed the lawsuit in the US District Court for the Northern District of Georgia alleged that the employer violated the ADA and is seeking back pay, compensatory and punitive damages, and injunctive relief to prevent future discrimination.

According to Marcus G. Keegan regional attorney for the EEOC’s Atlanta office, “Denying a reasonable accommodation and terminating an employee because of her disability clearly violates the ADA at any time. In light of the additional risks to health and safety created by COVID-19, it is particularly concerning that an employer would take this action several months into a global pandemic.”

Guidance Provided on Federal Employee Vaccine Mandate – The Safer Federal Workforce Taskforce has issued guidance  implementing a September 9^th executive order that requires federal employees to be vaccinated against COVID-19.

The Taskforce has set November 22^nd as the deadline to comply with the vaccine requirement. The vaccination mandate applies to all federal employees including those who are teleworking or working remotely. Federal agencies would need to provide a reasonable accommodation to employees who do not get vaccinated due to a disability or a “sincerely held religious belief, practice or observance.” The Taskforce indicated that it will be issuing further guidance on legally required exceptions.

The guidance directs agencies with employees who refuse to be vaccinated and who do not receive an exemption to undertake disciplinary measures that could include termination. The guidance states “In pursuing any adverse action, the agency must provide the required procedural rights to an employee and follow normal processes, including any agency policies or collective bargaining agreement requirements concerning disciplinary matters.”

DOL Issues Annual Update to Minimum Wage Rate for Federal Contractors – The U.S. Department of Labor published in the Federal Register an announcement increasing the minimum wage for employees of federal contractors on January 1, 2022, from $10.95 per hour to $11.25 per hour. The annual update is required based on Executive Order 13658 issued by President Obama establishing a minimum wage rate for federal contractors and adjusting it annually based on inflation. Effective January 1, 2022, tipped employees performing work under a federal contract must be paid a minimum wage of $7.90 per hour. The Labor Department noted that covered contracts either entered on or after January 30, 2022 or are renewed or extended will be subject to a minimum wage of $15 per hour as established by President Biden in Executive Order 14026.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.