VACCINATION UPDATE: OSHA ETS WITHDRAWN BUT OSHSA IS STILL SEEKING A PERMANENT STANDARD

Posted On January 27, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

January 27, 2022

 

You knew it was coming...another update on vaccination mandates.

As we previously informed you here, on January 13, 2022, the U.S. Supreme Court issued an Order staying the enforcement of the OSHA Emergency Temporary Standard (ETS). The OSHA ETS was the federal vaccination or testing requirement for private employers with 100 or more employees.

Although the stay was technically temporary, the U.S. Supreme Court found in its January 13 opinion, that the parties challenging the OSHA ETS would likely succeed – meaning OSHA's attempt to enforce the ETS, as written, would likely lose. The opinion can be found here.

On January 25, 2022, OSHA posted the following announcement:

The U.S. Department of Labor's Occupational Safety and Health Administration is withdrawing the vaccination and testing emergency temporary standard issued on Nov. 5, 2021, to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to coronavirus. The withdrawal is effective January 26, 2022.

Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.

OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.

Further, OSHA submitted a formal withdrawal of the ETS which can be found here, officially stating that the ETS will serve as a proposed rule under the Administrative Procedure Act subject to the regular notice-and-comment rulemaking process previously underway. To the extent you want detailed information on this process, the federal government has a great resource explaining the administrative rule making process here.

What does all of this mean?

  • Effective January 26, 2022, OSHA is withdrawing the ETS as a temporary standard. That means the pending lawsuits challenging the ETS will stop.
  • The ETS will remain as a proposed rule subject to the regular formal rulemaking process. As we previously informed you here, the notice and comment period for the ETS as a final rule ended on January 19th. After the process is complete, a formal regulation may be published on or before May 5.
  • It is unknown exactly what the final rule will look like but given OSHA's strong position, it is reasonable to assume that certain work-safety-related elements of the OSHA ETS will remain in place. Stay tuned, and we will continue to keep you posted as this develops.
  • As we have told you in the past, employers who were subject to the OSHA ETS may still implement their own vaccination policy. Given OSHA's intention to move forward with a final rule, implementing some sort of vaccination and testing policy may keep employers ahead of the game, subject to state laws of course. See our blog about state laws here.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

NOW THAT THE OSHA ETS IS BLOCKED, BEWARE OF STATE LEGISLATION...

Posted On January 18, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

January 18, 2022

 

As we reported on Friday, here, the U.S. Supreme Court blocked OSHA's enforcement of the Emergency Temporary Standard (ETS), which previously required many private employers with 100 or more employees to implement a vax or test policy. Employers may still opt to implement such a policy.

As promised, here is chart summarizing state rules which expand on the exemptions employers must make to vaccination policies.

NOTE: We also covered this during our Quarterly Compliance Update in the Docket last week! Stay tuned for a link to a recording and our materials.

ALABAMA

Effective: 11/5/2021

Exceptions

  • Medical Reasons identified by statute including prior COVID-19 diagnosis, severe allergic reaction, prior COVID-19 treatment, bleeding disorder, severely immunocompromised, or unable to take vaccine due to current health conditions or medications
  • Religious Beliefs

State Forms Required

  • If standard State Form is complete and submitted, employee exempt
  • Must be liberally construed in favor of employee

Legal Authority / Guidance

Additional Requirements

  • Includes administrative appeal procedure for employees if exemption request denied

ARKANSAS

Effective: 1/13/2022

Exceptions

  • Testing once a week
  • COVID-19 immunity provided twice a year

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • If unvaccinated employee is terminated and not offered testing, eligible for unemployment benefits

FLORIDA

Effective: 11/18/2021

Exceptions

  • Medical Reasons includes pregnancy or expectation of pregnancy
  • Religious reasons inquiries into the veracity of the employee’s religious beliefs prohibited
  • COVID-19 immunity from prior infection
  • Periodic testing
  • Employer-provided personal protective equipment (PPE)

State Forms Required

  • Must use actual or substantially similar forms created by the Florida Department of Health
  • If form submitted is complete, employer must permit exemption

Legal Authority / Guidance

Additional Requirements

  • Violations may be reported to the FL Attorney General who has authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more

IOWA

Effective: 10/29/2021

Exceptions

  • Employee requests waiver and provides one of the following statements:
    • Vaccine would be injurious to employee’s (or individual residing with employee) health and well-being
    • Vaccine would conflict with religion

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • Employees discharged for refusing vaccine may be able to receive unemployment benefits

KANSAS

Effective: 11/23/2021

Exceptions

  • Employee submits written waiver stating vaccine would:
    • Endanger life or health of employee or an individual who resides with employee
    • Violate religious beliefs and employer may not inquire into sincerity of request

State Forms Required

  • No specific forms required

Legal Authority / Guidance

Additional Requirements

  • Terminated employee may file claim with secretary of labor
  • If secretary finds violation, KS Attorney General shall impose a civil penalty
    • Up to $10,000 per violation for employers with fewer than 100 employees or
    • Up to $50,000 per violation for employer with 100 or more employees
  • Employees terminated in violation of this law eligible for unemployment

NORTH DAKOTA

Effective: 11/15/2021

Exceptions

  • Certification that vaccine would endanger life or health of employee
  • Certification that vaccine is contrary to employee’s religious, philosophical, or moral beliefs
  • Prior immunity to COVID-19 permitted proof of COVID-19 antibodies is valid 6 months from date of test
  • Periodic testing

State Forms Required

  • No specific forms required

Legal Authority / Guidance

TEXAS

Effective: 10/11/2021

Exceptions

  • Personal conscience
  • Religious Belief
  • Medical Reasons
  • Prior recovery from COVID-19

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

UTAH

Effective: 11/16/2021

Exceptions

  • Health reasons
  • Religious beliefs
  • Personal beliefs

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

  • Prohibits an adverse action against an employee who claims relief
  • Prohibits employer from keeping or maintaining records or copies of employee's proof of vaccination

WEST VIRGINIA

Effective: 1/20/2022

Exceptions

  • Exempt if employee presents:
    • Notarized certification by Heath Care Provider stating medical exemption is required due to individual’s physical condition, a specific precaution or COVID-19 immunity
    • Notarized certification by employee that religious beliefs prevent employee from receiving COVID-19 vaccination

State Forms Required

  • No specific forms provided

Legal Authority / Guidance

Additional Requirements

  • Employer may not discriminate or penalize employees providing for exercising exemption rights

In addition to the states identified above, Montana prohibits private employers from discriminating against employees based on vaccination status or having an immunity passport. Montana statute, effective May 7, 2021, and guidance can be found here and here.

Also, Tennessee legislation, effective November 12, 2021, prevents employers from requiring its employees to show proof of vaccination and prevents employers from taking adverse action against employees who object to receiving a COVID-19 vaccine for any reason. The statute can be found here.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

AN ADA TALE OF VACCINE EXEMPTIONS, EMPLOYER NOTICE, AND THE INTERACTIVE PROCESS

Posted On July 16, 2018  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

July 16, 2018

 

A recent case involving controversy about mandatory vaccines teaches two ADA lessons:

  • A doctor’s note may be sufficient notice to an employer of a disability andaccommodation request.
  • If you do something for nondisabled employees, don’t deny the same thing forsomeone with a disability.

Aleka Ruggiero was a registered nurse working for Mount Nittany Medical Center (MNMC).  She suffered from severe anxiety and eosinophilic esophagitis.  These conditions limited her ability to perform certain life activities such as eating, sleeping, and engaging in social interactions. Despite her impairments, Aleka was able to perform her duties as a nurse at MNMC.

The vaccine brouhaha.  MNMC directed all clinical employees to receive a vaccine for tetanus, diphtheria, and pertussis (the TDAP vaccine) by May 15, 2015.  Aleka did not get the vaccine but faxed MNMC a note from her doctor stating Aleka was “medically exempt” from receiving the vaccine due to medical concerns.  MNMC asked the doctor to identify which of the eight contraindications listed by the vaccine manufacturer applied to Aleka to exempt her from receiving it.  The doctor responded that Aleka had severe anxiety about some of the potential side effects, especially in light of her history of allergies and eosinophilic esophagitis.  “Patient being terrified, I feel the risk of this TDAP injection outweighs the benefits.”  This note did not address which, if any, of the contraindications applied to Aleka.

MNMC sent a letter to Aleka stating that the information provided by the doctor was insufficient to excuse her from the vaccine and setting a new deadline for her to receive it.  Aleka suggested she be allowed to wear a mask at work – as she alleged other nurses were allowed to do to accommodate their refusals to receive the flu vaccine.  She also alleged that other MNMC employees were allowed to refuse the TDAP vaccine yet remain employed.  Aleka did not receive the vaccine by the new deadline and was terminated by MNMC.

A doctor’s note can be adequate notice.  Aleka sued, asserting a claim for failure to accommodate, among others. The trial court dismissed Aleka’s claim, holding that (1) she failed to allege that MNMC was on notice of her disability and request for accommodation and that, in any event, (2) MNMC had fulfilled its obligation to engage in the interactive process when it notified Aleka that it would exempt her from the vaccine if she suffered from any of the identified contraindications.

The Third Circuit reversed and reinstated Aleka’s claims.  As to the first issue, the court noted that an employer is not required to engage in the interactive process to identify an accommodation unless it is on notice of a disability and request for accommodation, but the threshold for adequate notice is fairly low.  Aleka’s request for exemption from the vaccine coupled with two doctor’s notes to the same effect (which included information about her medical conditions) were adequate to put MNMC on notice of both Aleka’s disability and her request for an accommodation.

Oh, that interactive process.  On the second issue, the court recognized that both the employer and the employee bear responsibility for identifying a reasonable accommodation.  A party who fails to communicate, either by initiation or response, may be acting in bad faith.  In this case, MNMC showed no signs of having considered Aleka’s request to wear a mask or offering to discuss available alternatives.  This was sufficient to raise the inference that MNMC had failed to engage properly in the interactive process and deprived Aleka of the individualized consideration to which she was entitled under the ADA.  According to the court, MNMC was not obligated to provide the accommodation requested by Aleka, “but it also could not simply reject the request and take no further action.”

Accordingly, the case was sent back to the trial court for further litigation proceedings.

Ruggiero v. Mount Nittany Medical Center  (3rd Cir. 2018).

Pings for Employers

This case is in early stages yet and the employer may still prevail, but more a more thoughtful and involved approach might have saved MNMC a lawsuit.

  • Be sure to engage in the interactive process. Even though an employee has an obligation to identify a
    reasonable and effective accommodation, this court and the EEOC will tell you that rejecting the employee’s
    suggestion, without more, is not “interactive.”
  • Consider what you do for employees in other situations. MNMC apparently felt that Aleka’s failure to identify
    a specific contraindication justified denying her request to avoid the vaccine and wear a mask.  And maybe, in
    litigation, they will be able to show facts that justified differing treatment of Aleka.  But how much better to allow
    her to wear a mask and avoid a lawsuit, or discuss with her their objections and avoid a lawsuit?

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.