Employers face significant continuing risk from retaliation and other claims from workers associated with COVID-19 safety practices despite court-compelled delays in the Biden Administration’s efforts to implement its vaccination mandates and the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announcement of its extension of the comment deadline for its now-enjoined COVID-19 Vaccination and Testing Standard to January 19, 2022.
ETS & Other Federal Vaccine Mandates
The ETS is one of several vaccine mandate and other added COVID-19 safety rules President Biden announced on September 9 he directed federal agencies to impose on employers through a series of agency rules as part of his “Path Out Of The Pandemic” plan that include Executive Orders ordering:
- OSHA to issue emergency rules that would require all employers with more than 100 employees to get vaccinated or be tested at least weekly;
- OSHA and other federal regulations to require vaccinations for all federal workers, contractors and subcontractors;
- OSHA and the Centers for Medicare and Medicaid Services (“CMS”) rules to require COVID-19 vaccinations for all health care workers at Medicare and Medicaid participating hospitals and other health care settings;
- Using Department of Education and federal funding measures to support vaccination and masking in schools; and
- Calling on large entertainment venues to require proof of vaccination or testing for entry.
OSHA COVID-19 ETS
The ETS OSHA issued as a temporary emergency standard on November. 5, 2021 currently covers employers with 100 or more employees. However comments published with the ETS indicate OSHA is considering extending the ETS to smaller employers.
Under the ETS, covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS requires covered employers to ensure their workforce is fully vaccinated or adopt a and enforce a policy that requires workers either prove they are fully vaccinated or workers who remain unvaccinated to wear masks and produce a negative test result on at least a weekly basis before coming to work. The ETS also imposes burdensome documentation and record keeping requirements.
The ETS is in addition to a separate mandate applicable to health care workers providing services to Medicare and Medicaid participating health care facilities. In June OSHA issued a different emergency temporary standard for certain healthcare workers that originally required nursing home and certain other care facilities to require and enforce vaccination of employees and other service providers. OSHA extended its health care emergency temporary standard to cover workers at most health care organizations following President Biden’s September 9 directives.
The ETS and health care emergency temporary standard vaccination, testing and masking requirements add to existing OSHA guidance requiring employers to educate and train workers to use multiple safeguards to avoid and contain the spread of COVID-19 in their workplaces in accordance with these rules, OSHA’s general duty to provide a safe workplace, its anti-retaliation and anti-interference rules and other OSHA rules.
Both the ETS and the health care emergency standards provide exceptions for and require covered employers to provide accommodations for disabilities and seriously held religious beliefs required by federal equal employment opportunity laws administered by the Equal Employment Opportunity Commission (“EEOC”) while making clear that the covered employer must be able to demonstrate with evidence that accommodations were required as well as implement appropriate alternative safeguards to maintain workplace safety. Where the accommodation prevents vaccination, this generally means adherence to testing, masking, social distancing and other standards to provide for safety.
Employers walk a tightrope negotiating these dual obligations. Discrepancies in the language used by OSHA to describe an employer’s responsibility to determine whether and when accommodation is required in the ETS compared to language in existing EEOC guidance calling for employer deference to religious and disability requests raises ambiguity regarding the degree of deference the OSHA rules allow an employer to allow to the accommodation claims made by employees versus the EEOC.
The highly subjective, fact specific nature of these determinations under either interpretation make these determinations challenging for employers. The risk of negotiating these challenges is further complicated by the exposure to likely retaliation charges under the OSHA or Civil Rights Act anti-retaliation rules that employers must negotiate when dealing with expectations and waive of accommodation inquiries and requests from employees.
Retaliation and interference protections often protect employees against adverse employment action for good faith questions about or participating in investigations or other protected activity regarding safety, discrimination or accommodation even when the employee was not entitled to the accommodation or other protection asserted.
The significance of the retaliation risk is highlighted by the prioritization of retaliation investigation and enforcement recently announced by both the EEOC and OSHA. In March, OSHA launched a national emphasis program focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. The program also prioritizes employers who retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protecteds by federal law.
The EEOC and other Department of Labor agencies also are prioritizing retaliation and interference investigation and enforcement. On November 17, 2021 the EEOC announced its involvement in the new initiative to end retaliation against workers who exercise their protected labor and employment law rights by collaborating among these civil law enforcement agencies to protect workers on issues of unlawful retaliatory conduct, educating the public and engaging with employers, business organizations, labor organizations and civil rights groups in the coming year.
In furtherance of this effort, the EEOC updated its COVID-19 technical assistance to include more information about employer retaliation under the Civil Rights laws the EEOC enforces in pandemic-related employment situations. Key points shared in this new technical guidance include:
- Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the EEOC-enforced anti-discrimination laws.
- Protected activity can take many forms, including filing a charge of discrimination; complaining to a supervisor about coworker harassment; or requesting accommodation of a disability or a religious belief, practice, or observance, regardless of whether the request is granted or denied.
- Additionally, the ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.
These and other OSHA safety mandates, alone or coupled with the disability, religious accommodation, age and other equal employment opportunity nondiscrimination, and anti interference
Litigation Challenging ETS & Other Federal Vaccine Mandates
Along with OSHA’s issuance of the ETS, the Safer Federal Worker Task Force, the Centers for Medicare and Medicaid Services, and the Department of Education also published rules seeking to implement the other aspects of the Biden vaccination mandate strategy.
The ETS and other rules also are facing court challenges. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and DOL has filed a motion to lift the stay. While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Note that the comment period is separate from the litigation.
On Monday, November 29, 2021, for instance, a Federal District Court in Missouri v. Biden issued a preliminary injunction staying enforcement against the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire of the vaccine and other COVID-19 safety requirements for federal contractors and subcontractors imposed by the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors issued by website posting on September 24, 2021
Employers Face Significant Continuing Risks Despite Preliminary Injunctions Against COVID Vaccine Rules
While litigation over the validity of its ETS and other aspects of the Biden plan to mandate vaccination of millions of Americans, OSHA has said it is continuing to collect comments because it views the comment period as separate from the litigation. OSHA extended the comment deadline stakeholders additional time to review the ETS and collect information and data necessary for comment.
While awaiting the outcome of the litigation over the OSHA vaccine mandates, employers should use care to conduct themselves to mitigate their exposure to violations of other remaining OSHA safety and recordkeeping rules, age, disability, religious and other discrimination claims and retaliation and interference claims.
The preliminary injunctions against the vaccine mandate rules does not impact the exposure of employers to retaliation and interference charges that could arise from their handling of employee questions or opposition to compliance with employer policies, assertion of rights, expressions of concern, and other activity. That means retaliation and interference claims present as big or bigger threat as the rules themselves and last beyond the reach and validity of the rules.
Facing peril from all sides, employers must tread carefully in developing and administering their workplace COVID-19 vaccination and other safety policies to manage the exposures created from the resulting Catch-22 legal and political environment. Employees of course must will monitor the litigation and other regulatory developments. At the same time, employers should use when dealing with worker and other inquiries, expressions of concern and other dealings with employees and applicants regarding COVID-19 safety, leave, accommodation and other concerns as well as to document carefully and preserve other evidence necessary to support performance and other business justified employment actions against potential retaliation or discrimination challenges.
Employers should use care to protect sensitive discussions about how to design and administer their policies, respond to employees and other sensitive matters by seeking the advice of qualified legal counsel and discussing these and related matters within within the scope of attorney-client privilege.
Employers should use care to carefully consider and document their decisions, including the basis and evidence supporting their justification in all workforce dealings keeping in mind that charges of retaliation or interference could arise from workforce actions not directly connected with an employee’s involvement in COVID-related concerns.
The author of this update, employment lawyer Cynthia Marcotte Stamer, conducted a briefing on these and other federal COVID-19 vaccination and other workforce requirements as a panelist on the “COVID-19 Vaccination Mandates & Incentives” virtual seminar the American Bar Association Joint Committee on Employee Benefits hosted on November 12, 2021. To purchase a recording of the program, see here. For information about obtaining Ms. Stamer’s slides, email here.
Solutions Law Press, Inc. also invites you to receive future updates by registering here and participating and contributing to the discussions in our Solutions Law Press, Inc. LinkedIn SLP Health Care Risk Management & Operations Group, HR & Benefits Update Compliance Group, and/or Coalition for Responsible Health Care Policy. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here. For specific information about the these or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
About the Author
For help developing, administering or defending your organization’s COVID-19 Mandatory Vaccine Policy or other workforce, employee benefits, compensation or compliance practices, contact the author. Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years working as an on demand, special project, consulting, general counsel or other basis with domestic and international business, charitable, community and government organizations of all types, sizes and industries and their leaders on labor and employment and other workforce compliance, performance management, internal controls and governance, compensation and benefits, regulatory compliance, investigations and audits, change management and restructuring, disaster preparedness and response and other operational, risk management and tactical concerns.
For more information about these concerns or Ms. Stamer’s work, experience, involvements, other publications, or programs, see www.cynthiastamer.com, on Facebook, on LinkedIn or Twitter or e-mail here.
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