The President’s vaccine mandate

Nate Smith: (00:11)
Hi, and welcome to the HR Trends podcast from Unum. I am Nate Smith. I'm your guest host today, filling in for Clare Morin. We're here to talk about the recent federal vaccine mandate and what it means for employers. Wherever you fall on the issue, the fact is is that there is a federal vaccine mandate and employers need to respond.

Nate Smith: (00:32)
We're here today with Ellen McCann. She's a frequent guest here on HR Trends. She's an expert in regulatory compliance on a number of fronts. She's worked in various roles here at Unum, helping employers navigate compliance with ADA and FMLA and similar types of programs. A lot of that expertise applies here to the vaccine mandate and gives some great perspective. We're here to help employers understand how to respond to this vaccine mandate, what are the steps that they might need to take, and importantly, what does this all mean? Ellen, welcome to the show. To start with, what can you tell us in terms of just the basics of the federal vaccine mandate?

Ellen McCann: (01:18)
Thanks, Nate. What we really have here is a plan that's been announced by the president. As part of that plan, he has charged certain agencies of the government with developing the mandate and actually going ahead and giving us the rules of engagement, if you will, for how his plan will be implemented. That plan really comes down to some key components and that is that many American workers will have to be vaccinated in order to show up for work. Some of those American workers will have an option to be tested for COVID rather than get vaccinated, but there is a significant portion of the population that will have to get vaccinated. That's really the gist of this plan. There are other components to it, but from an employer perspective, it's really all about a vaccine mandate and that mandate applies differently to different segments of the employment population.

Nate Smith: (02:14)
Well, that's a great point that you bring up. What can you tell us about who this applies to and what's different between all employees? We've certainly heard the employers over 100 employees have the mandate, but how does that differ between other categories, like healthcare workers and federal employees and employees of federal contractors?

Ellen McCann: (02:37)
The plan applies to basically four different categories of workers. As you mentioned, employees who work for what the president considers large companies, which are companies that have over 100 employees. It also will cover any healthcare worker at any healthcare institution that receives either Medicaid or Medicare funding, which is essentially almost all healthcare employees in the United States. It also applies to federal executive branch employees and federal contractors. Federal contractors are, for folks who aren't as familiar with it, any employer that provides goods or services to the federal government. Depending on the nature of those services, they can be deemed a federal contractor. This will apply to some of their employees as well, so it's not just people who are working for the federal government, but it also can be companies who provide services or have contracts or subcontracts with the federal government.

Ellen McCann: (03:34)
What we're seeing is the difference in how they're being treated. Again, we'll have more details once these government agencies actually give us more details about how this will work, but what the president has laid out in his plan is that for private employers who have over 100 employees, their employees will either have to become vaccinated or they will have to test for COVID at least once a week before they can report to work. Those employers will have to presumably give those employees who have either religious or disability-related requests for exemption, they'll still have to consider those, but those are the two options for those private employees.

Ellen McCann: (04:19)
As opposed to that, the public employees, the federal employees, federal contractors, they do not have an option to test out. They're going to have to be vaccinated. Again, of course, subject to those exemptions that may have to be given. The same with the healthcare employees. There is going to be a limit there, at least from what we can tell right now, that they will have to be vaccinated.

Nate Smith: (04:44)
How is this going to be practically implemented? What part of the government is going to do what and what are employers specifically expected to do to comply with the mandate?

Ellen McCann: (04:57)
With regard to the private employees of employers with over 100 employees, those rules will come from OSHA, which many of you are familiar with. It's a division of the Department of Labor called the "Occupational Health and Safety Organization." They're expected to issue what they call an "emergency temporary" standard or "ETS." The reason why OSHA will do the primary heavy lifting for private employers is because OSHA has regulatory authority to govern the safety of private workplaces.

Ellen McCann: (05:32)
For the private sector employees, we'll see OSHA will come out with this emergency temporary standard and they will give us details of how employers have to comply. But what we're seeing is different regulatory agencies will address the other categories of employees. For healthcare, the Centers for Medicare and Medicaid Services will issue that guideline because they determine all of the rules that impact any organizations that receive funding through Medicare and Medicaid. Then we saw the president actually issue executive orders with regard to federal contractors and federal employees, but we will see with regard to federal contractors, there is a task force that will issue orders regarding how that part of the plan will be implemented.

Nate Smith: (06:24)
It sounds like there's going to be a fair amount of cooks in the kitchen in terms of detailing exactly how employers need to respond. What are some of the major outstanding questions that aren't clear at this point and what does that mean for employers in terms of how they're considering how to respond to this?

Ellen McCann: (06:45)
There are a lot of outstanding questions right now, again, because the president announced the plan, but others will actually be giving us the rules of the road as to how we comply with the plan, so there's many, many open questions at this point. Some of the most obvious are with regard to the private employers with over 100 employees.

Ellen McCann: (07:06)
What if an employee just had COVID? Will they be exempted from this? What if the employee says that they have an objection to getting a vaccine, but they're willing to work from home? Will the employer have to allow them or consider that for them as a reasonable accommodation? What is the impact of the fact that they may have been working from home for the last two years and performing successfully? Will that undermine the employer's ability to be able to say, "Work from home is not a reasonable accommodation"? What about employees who are saying, "I cannot get a vaccination because of a medical accommodation, but I also cannot wear a mask, and I can't submit to weekly testing"? What is the employer's response to that?

Ellen McCann: (07:51)
There are a lot of questions as to how this will work. The other major question, I think for smaller employers, maybe less than 200, is will they have an ability to use financial duress as a way of saying that employees cannot test out and will have to actually receive the vaccine? We're not quite sure yet whether employers, excuse me, will be able to say that they're not going to offer that option or whether that will be a mandatory option that all private-sector employees will be able to leverage.

Nate Smith: (08:28)
It's interesting, in your answer just now, you were talking about reasonable accommodations. Of course, that brings to mind accommodations under the ADA. How does this relate to the ADA? Is it expected that accommodations to this are going to be part of ADA accommodations, or is this different?

Ellen McCann: (08:52)
We will see a lot of requests for ADA accommodations here. The ADA will apply to those requests. Even the president in his plan has said that with regard to federal employees, the government will, of course, evaluate any reasonable requests for medical accommodations under the ADA and treat those as they would any other type of accommodation, so these will be medical accommodations that employers will have to evaluate. They'll have to understand what that process looks like, how to engage in the interactive process, and how to evaluate whether there is an accommodation that can allow the employee to do their job without creating an undue hardship on the company or without creating a direct threat to the employee or others. Very familiar territory, for us at least in the ADA space, because these will be ADA accommodations.

Ellen McCann: (09:44)
What's a little bit different here than most employers are used to dealing with is there will also be religious accommodation requests, so employees can request an accommodation or an exemption to get vaccinated if they feel they have a sincerely held religious belief that prevents them from getting the vaccination, so employers will have to engage in the interactive process like they would with any other request for an exemption from an employer policy based on a sincerely held religious objection, but employers can expect many, many, many more requests for either religious or disability-related accommodations coming out of this mandate.

Nate Smith: (10:31)
Are there any standards about how employers should be evaluating those requests, especially when it comes to things like religious exemptions? Are there any standards laid out about what those mean and how those should be treated?

Ellen McCann: (10:49)
There are standards laid out. The EEOC is the organization that governs Title VII, which provides that employers have to give religious exemptions for employees when a workplace policy conflicts with the employee's religious beliefs. The employer has to go ahead and evaluate whether there is a reasonable accommodation that allows the employee to perform the essential functions of their job. There are EEOC guidelines already on religious accommodations, as well as very specific guidelines on COVID-related religious exemptions that the EEOC has published fairly recently, so there is some good resource out there for employers. If they haven't had a lot of experience with religious accommodation, they can certainly go and take advantage of those opportunities to look at what the EEOC has already provided.

Nate Smith: (11:41)
That's great. How about paid leave? I think I've heard mentioned that there's some additional mention of paid leave in this mandate. That doesn't seem to be getting as much attention. How does the vaccine mandate relate to the various paid leave requirements and paid leave accommodations?

Ellen McCann: (12:00)
Paid leave is another place where we don't have a lot of details yet, but we do know as part of the plan, employers will be required to provide their employees with paid leave to receive the vaccinations, as well as if there are any complications or any medical issues that result from the employee becoming vaccinated, so they will have to provide paid leave for both of those eventualities. We don't know exactly if there's a cap on that. We don't know what that will look like, but as many of our listeners know, many states have also already enacted paid leave mandates for vaccination, and so we expect we'll see some similar rules when we hear from the government on exactly how this will work.

Nate Smith: (12:46)
Great. To ask an obvious question, do we expect this to be litigated? If so, what do we think the impact of that litigation is going to be, especially on a state-by-state basis?

Ellen McCann: (12:59)
We do certainly expect litigation on this issue. In fact, we have many public figures, particularly governmental figures, that have already said that they will challenge this because they do believe that it is unconstitutional for a variety of reasons that they have been explained, so there will definitely be litigation. We don't know, of course, no one can predict what the outcome of that litigation will be, but we do expect some challenges.

Ellen McCann: (13:26)
One thing we do know, though, is that employers will need to get ready to react to this because even if the president's plan falls for one reason or another, we still do have many states and even some municipalities that have already enacted vaccine mandates and others that may do so in response to any legal challenges to the federal mandate, so I think some of that's here to stay, at least in some form or fashion. We don't really know how broad that will be yet until we see how that plays out, but there is at least quite a bit of activity on vaccine mandates across the country.

Nate Smith: (14:04)
Interesting. Then turning an eye toward what employers need to be thinking about in terms of solutions and how to react and what they need to put in place, what are the considerations that they should really be thinking about as they do that, as they think about, "Well, what are the actual solutions that were going to be out there?"

Ellen McCann: (14:23)
Employers really want to make sure that they go to their trusted partners and partners that have a history of helping them comply with regulatory requirements because this is very complicated and it does intersect many other issues for employers, and so they really want to make sure they're looking for those trusted partners and they're using reliable resources to help them with this.

Ellen McCann: (14:46)
These are tricky situations. Determining whether someone has a valid disability-related request for accommodation, or even a religious request is a complicated matter and employees want to make sure they get it right. The other thing they want to make sure is whatever solution they're using understands confidentiality of medical information and things like that, that it's trusted, it's a trusted vendor there, and that they have experience in dealing with these types of issues so that they can really be helpful for them. They don't want someone who will just give them an Excel spreadsheet, if you will, to just track requests that come in. They really want someone to help them navigate through these difficult decisions and someone that has been in the industry for quite some time.

Nate Smith: (15:32)
Interesting. Well, Ellen, thank you so much. This has been very informative. I hope that listeners got some of their questions answered. There certainly are plenty of outstanding topics and we will definitely keep everybody tuned in and up-to-date as we learn more and as some of those details get worked out. Thanks so much. For HR Trends, this is Nate Smith signing off.

Speaker 3: (16:04)
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