President Joe Biden announced on September 9, 2021 a new rule requiring employers with at least 100 employees to mandate that their workers be vaccinated against COVID-19 or undergo weekly testing. The president also signed orders indicating that most federal employees and federal contractors, as well as most health care workers across the country, must be vaccinated. Previously some private employers enacted policies requiring vaccines of their workers, but these decisions were made primarily based on workplace dynamics and culture. With broader government imposed mandates in the offing, employers are asking more questions than before about how to handle mandating vaccines in a polarized workforce in a tight labor market.
Inquiries About Vaccination Status or COVID-19 Diagnoses
Employers, after years of being conditioned about the risks and limitations of making inquiries about medical issues are understandably wary of asking employees about health issues or vaccination status. From the outset, business should be aware that most workplaces are not required to comply with the stringent rules of the Health Insurance Portability and Accountability Act of 1996 (better known as HIPAA). The HIPAA privacy rules apply primarily to medical providers, health insurance companies, medical clearinghouses, and some organizations with whom they do business, known as business associates. Absent very limited circumstances, employers are not covered entities under HIPAA. The rules regarding the privacy of medical information with which employers must comply mostly lie within the Americans with Disabilities Act (ADA). Under these rules employers are prevented from making pre-employment medical inquiries, imposing medical tests, or asking medical related questions of employees unless certain criteria apply. When medical information is obtained by an employer, its dissemination is on a strict need to know basis.
Since the onset of the pandemic the EEOC which administers the ADA, has made it clear that employers may ask whether employees are experiencing COVID-19 symptoms. Most recently, the same rule has been applied to asking workers and applicants about vaccination status. Businesses may also inquire about the vaccination status of visitors and customers.
When making such inquiries or seeking documentation of medical or vaccination status, however, employers should maintain confidentiality of the information to the extent possible and should keep documentation in confidential medical files.
The Do’s and Don’ts of Enforcing the Mandate
The federal vaccine mandate will also require employers to provide employees with paid time off to get vaccinated and to recover from any vaccine-related side effects. Failure to comply with any aspect of the mandate will expose businesses to fines of up to $14,000 per violation.
Many of the details of how employers will be expected to administer the mandate remain unknown. Last week OSHA sent a proposed rule, known as an ETS or emergency temporary standard to the White House Office of Information and Regulatory Affairs for approval. The President has requested an expedited process for review. The rule is expected to address how employees will be counted to determine whether the 100 employee threshold has been met along with such other questions as whether employers will be required to collect proof of vaccination or if remote employees will be covered.
We can expect that once the review of the ETS is complete, compliance with the mandate will be required fairly quickly. Federal contractors are already required to comply by December 8. Given the anticipated resistance of some employees, companies should now be thinking about a plan to address such things as accommodation requests and outright refusal by workers. Employers, if they have not already done so, should go about collecting information on the numbers in their workforce who are currently fully vaccinated or intend to be. This will help in planning for anticipated turnover.
The Recruitment and Retention Dilemma
It is clear that employers have the ability to place employees who are not vaccinated on extended unpaid leaves of absence or to terminate their employment. The question is whether many will want to, given the shortage of qualified workers in many industries. At least one New England state, Maine, has ruled that employees who lose their jobs due to the mandate are ineligible to collect unemployment.
The Society for Human Resource Management (SHRM) released this week the results of a survey it conducted of both employers and employees. The biggest concern of employers is the anticipated difficulty in hiring and retaining employees. As much as 89% of employers subject to the mandate believe some employees will quit as a result, even with the available option to be tested regularly. Of the employees surveyed, half of those not currently vaccinated indicated that they would leave their jobs if required to be vaccinated.
Workers in manufacturing (49 percent) and in wholesale trade, retail trade or transportation, and warehousing (48 percent) were the most likely to not support the mandate, followed by workers in administrative and support services (44 percent) and in construction, utilities, agriculture and mining (43 percent).
Workers in the professional, scientific and technical services (75 percent) were the most likely to support the mandate announcement, followed by workers in information, finance and insurance, and real estate (67 percent) and in health care and social assistance (64 percent).
Thus far, court challenges to mandates by employers or government entities have been unsuccessful. There is no reason to expect that to change. The signs from SHRM survey seem to show that some employees will comply with the mandates in order to keep their jobs. Others will leave or force their employers’ hands and be terminated or placed on leave.
Employers should now be preparing to address requests for accommodation which might include work from home if permitted by the ETS, job changes, testing, and backfilling positions which may be vacated.
 Companies should check the status of state in law in the jurisdictions in which they operate since some states have passed or are considering passage of laws restricting inquiries or imposing requirements, such as mask wearing, on vaccinated or unvaccinated individuals differently.
 Allen Smith, JD, Survey: Vaccine-or-Testing Mandate Will Be Difficult to Implement, SHRM, October15, 2021.