Employers Seek Answers to Confusion Surrounding Conflicting COVID-19 Laws

Sarasota, FL (WorkersCompensation.com) – If an unvaccinated employee travels to New York City for a convention must he get vaccinated? Yup. The chaotic mix of federal, state and local regulations surrounding COVID-19 is generating lots of questions and confusion for employers, and in some cases creating gray areas. One, for example, is if a worker travels to a state where the rules are different, what rules does he need to follow?

“For work purposes it depends on where they are traveling and why,” explained Katarina Niparko, Compliance Counsel for the Reed Group. “For example, in New York City people [5] and older participating in a public indoor activity are required to show proof of full vaccination … so if a person is going to a public convention, absolutely they’d need to show vaccination status, and they need to follow New York City’s rules whether they are a resident or not.”

Then there are questions about remote workers and whether they must adhere to the rules of their home base or that of the office, if they differ. There is the question about what, if any, action an employer can take if an employee ignores a vaccine mandate but won’t get tested and does not seek an accommodation. Finally, what should an employer do if a client requests the vaccination status of a particular employee?

Experts advise employers to pay close attention to the federal, state and local rules for each jurisdiction where they have employees to ensure they are in compliance.

Latest Regs

The OSHA Emergency Temporary Standard (ETS) that would have required larger employers to implement vaccine or testing/mask requirements is dead, but other federal COVID-19 mandates are being challenged in the courts, Among them are:

Healthcare organization mandate that would require vaccines for staff among Medicare and Medicaid certified providers and suppliers. “About 25 states have objections and the Centers for Medicare and Medicaid Services (CMS) has allowed those objections to currently stand,” said Ryan Nelson, Sr. Absence Management Solutions Practice Leader for Guardian. For the remaining states, affected employees should have received at least one vaccine by Jan. 27, and the second dose (for those with two shots) by Feb. 28.

Federal contractor mandate required employees of federal contractors to be vaccinated as of Jan. 18. “But there are a number of blockers in the way,” in the form of pending legal challenges, Nelson said. “For those employers affected, you should still be prepared to follow this mandate.”

Federal employee mandate required vaccinations for all federal employees as of Nov. 22, 2021. “This is also being challenged in the courts,” Nelson said. “Last week, Texas put blocks in the way.”

In addition to actions on the federal level, many jurisdictions are also taking action. “It’s likely we’ll see an increase in state legislation in the coming weeks that will impact private employers,” Niparko said. “We’ve already seen a flood of legislation.”

Among the latest to introduce COVID-19 related legislation was Mississippi, which is seeking to prohibit mandatory vaccinations to state residents whether by state employers, political subdivisions or employers, as a condition of employment.

Other states have introduced or passed legislation that does everything from mandate vaccines and/or testing and/or masking, require state paid-leave for employees to get and recover from any side effects of vaccines, to banning employers from requiring vaccine or testing mandates. While some apply to private employers, others cover only those in certain industries, such as healthcare, education or contractors. “It’s a broad spectrum of legislation,” Niparko said. “Some are being passed rather quickly.”

Questions

Niparko and Nelson recently responded to a series of the most frequently asked questions by employers.

With the ruling against the ETS, can employers still require employees to get vaccinated?

With certain exceptions based on local law, such as in Tennessee and Montana, among others, an employer may lawfully require that their workers be vaccinated. Employers must still engage in the interactive process and evaluate whether an employee must be reasonably accommodated and excused from a vaccination requirement due to their medical condition, sincerely held religious belief, practice or observance, or other qualifying reasons. An employee who refuses to become vaccinated and who is not eligible to be excused from that requirement under federal or local law, may lawfully be terminated. Employers should tread carefully in these circumstances and consult legal counsel before making any decision to terminate an employee for noncompliance.

Does the healthcare vaccine requirement apply to dental offices?

“For the most part no, but not always,” Nelson said. “It does require that Medicare and Medicaid facilities are compliant, and sometimes they have dentists in them. But for private dental offices it is not required.”

If remote workers are in multiple states but there is only one actual office headquarters, is it safe to assume mandates outside of the state where the office is located would not apply to remote workers?

“No, it is not safe to assume mandates would not apply,” Niparko said. “When considering which mandates apply to which employees, look at the language of the law and what is required. In some states it is unlawful to require vaccine mandates for any citizen of that state, so that would apply directly to those who live in that state. But other legislation may say any employer in the state cannot mandate vaccines. So it really depends on the law in the state where the employer is and where the employee resides.”

Can an employer take action if a worker refuses to get vaccinated but does not get tested or seek an accommodation?

“Making a vaccine mandate a condition of employment can get tricky,” Niparko said. “It’s important to consider each individual case, and whether the state allows taking action against an employee … Mississippi is considering a law that would make it illegal for employers to make vaccines a condition of employment. Really pay attention to what is going on at the state and local levels.”

Can an employer tell a client the vaccination status of an employee without first getting permission?

No. Information about an employee’s vaccine status is confidential medical information. If the client asks about a specific employee, the employer must first get permission from that employee.

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