Over the past three years, employers have grappled with how best to respond to various workplace issues caused by the COVID-19 pandemic. Many of the protocols employers put in place relied heavily upon guidance issued by the Centers for Disease Control, National Institutes of Health and other federal, state and local government authorities during the COVID-19 national emergency (NE) and public health emergency (PHE).
Now that the Biden administration has announced its plan to officially end both the NE and PHE on May 11 and society is returning to a relative normal, many private employers are contemplating what to do with their existing COVID-19 policies and protocols. Many employers implemented mandatory COVID-19 vaccination policies as a condition of employment for health and safety reasons at the height of the pandemic, for example, but may now want to change or eliminate the policy altogether for various business reasons. Below, we address two major areas on this topic.
Mandatory Vaccine Policies
Despite the Biden administration’s plan to end the NE and PHE, there is still a federal mandate in place requiring health care workers subject to the Centers for Medicare and Medicaid Services’ vaccination rules to be vaccinated against COVID-19. There are also states and localities with laws still in place limiting private employers from mandating COVID-19 vaccination for their employees.
Employers who are not subject to a federal vaccine mandate or state or local laws restricting mandatory vaccination can still require COVID-19 vaccination as a condition of employment as long as they provide reasonable accommodations for employees who are unvaccinated because of a disability or sincerely held religious belief, practice or observance. Employers are not required to provide a reasonable accommodation if it would pose an undue hardship on the employer. However, employers must offer an alternative accommodation if one is available absent undue hardship. Whether an accommodation poses an undue hardship depends on a number of factors, such as the type of accommodation requested, the nature of the employee’s job and job duties and the employer’s size and financial resources. Undue hardship is therefore determined on a case-by-case basis.
Whether an employer should voluntarily continue to mandate vaccination as a condition of employment is an entirely different – and much more complex – question that requires weighing legal and business considerations. It depends on a multitude of factors specific to the employer’s industry, business, workforce and other areas. While not limited to a confined list, important factors for employers making this decision to consider include:
- Whether any employees are in a state that prohibits mandatory vaccination
- The nature of the business and industry and whether any federal mandates apply
- The employer’s process, if any, for providing ADA and religious accommodations/exemptions
- Whether the employer is prepared to terminate those without an exemption who refuse to get vaccinated
- Whether the employer will allow testing as an alternative to vaccination
- Whether the employer needs to pay for employees’ time to get vaccinated or tested and/or expenses associated with vaccination or testing
- Will the employer provide leave for employees to get vaccinated or for symptoms after vaccination?
- What proof of vaccination will employees be required to provide and how the employer will protect the privacy of that information?
- Will the mandate extend to visitors (i.e., clients, customers, vendors, etc.)?
- Whether the employer has a unionized workforce such that mandatory vaccination could subject to bargaining
For some jobs that are more high risk or regularly involve direct interaction with patients, customers or other community members, continuing to enforce a mandatory vaccine policy may be the most effective way to ensure the continued health and safety of employees and third parties they interact with. On the other hand, employers experiencing challenges in hiring and retaining employees may decide to end an existing vaccine mandate if the cost of keeping it in place outweighs the health and safety benefits of maintaining it, especially for lower-risk jobs.
Other COVID-19 Policy Considerations
The end of the COVID-19 emergencies may also prompt employers to rethink other COVID-related policies still in place, such as mandatory masking, social distancing, contact tracing and pre-visit questionnaires. Some protocols, such as contact tracing and pre-visit questionnaires, may no longer be necessary for lower-risk work environments, except where state or local law requires. Additionally, more and more employees are returning to in-person work, making social distancing more difficult. However, employers should remain mask friendly for those who prefer to wear masks while at work.
The end of the NE and PHE will also affect the extension of deadlines for health and welfare plans and mandatory employer coverage of COVID-19 testing and services without cost-sharing to employees. Affected employers should consider whether they want to continue covering the cost of COVID-19 tests and vaccines and ensure their health plans revert to pre-pandemic regulations.
Despite the end of the NE and PHE, the coronavirus remains a major part of the infectious disease landscape, and employers will continue to play an essential role in protecting the health and safety of their employees and surrounding communities going forward. As May 11 approaches, employers should review their current COVID-19 protocols and determine what, if any, changes need to be made. As with all employment issues, employers should continue to monitor COVID-related legislation and governmental guidance in their state and local jurisdictions for any changes, as well as update existing COVID-19 policies and procedures based on the current state of the pandemic and changing business needs. Employers should reach out to counsel with questions on whether and how to update or end existing COVID-related policies and procedures.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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