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Texas joins Montana in conflict against Biden vaccine mandates

By Executive Order of its Governor, Texas has joined Montana in an on-going conflict against the recent vaccine mandates announced by President Biden. But how direct are these conflicts? While certainly direct enough to ensure significant litigation in both states, there appears to be some room for some form of compliance with the Biden mandates, especially in Texas. Hopefully litigation will strike the state bans (or clearly rule, in reverse, that they somehow supersede the Biden mandates), so that employers (and employees) have clarity as to vaccine-related rights and obligations in these states; however, until and unless that occurs, these state laws are likely to create significant confusion as each law leaves significant room for partial compliance with the federal mandates.

The Texas Governor’s Executive Order is likely to be followed by a new statute from its legislature. Indeed, the Governor has already added it to the legislature’s agenda in an upcoming special session. Until then, it provides, as follows:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

Thus, unless modified by the legislature in its upcoming special session, it appears that while Texas’ new law does apply to private employers, it does not prohibit them from complying with the Biden mandates. Rather, it expands an employee’s ability to demand exemption from a mandate. It is anticipated that all of the Biden mandates will likely permit reasonable accommodations, including exemptions, on the basis of religion and disability. This new Texas law appears to simply add/expand exemptions in Texas on the basis of “personal conscience” or “medical reasons, including prior recovery from COVID-19.” It is not clear how these compare to religion or disability. Is “personal conscience” broader than the already broad definition of “religion”? Are “medical reasons, including prior recovery from COVID-19” broader than “disability”?

The Montana ban flows from its legislature’s new law, House Bill 702. The Montana law adds “vaccination status” and a “vaccine passport” to its state’s EEO law’s definition of protected classes (along with race, etc.). It defines the phrase “vaccine passport” to include as an example a vaccine card. How does the Montana law square up to the Biden mandates? In its FAQ dated 9/29/2021, Montana dodges the question saying that, until the new OSHA rule comes out, its law is “in effect,” without explaining what that means.

The Montana law is already subject to multiple lawsuits seeking to strike it down. The Texas bill is sure to be challenged shortly in the courts.

Hopefully employers will soon obtain clarity from courts in these states. Until then, employers in both states (and any other state that joins this pool of confusion) should realize that neither Texas nor Montana’s state law flatly prohibits compliance with the Biden mandates. They may simply limit how or to what extent compliance is possible. Still both are clearly in direct enough conflict with the Biden mandates, it is likely courts will have to clarify these issues.

Biden vaccine mandates: What private employers know so far

On 9-9-2021, President Biden announced sweeping vaccine mandates that will affect private employers.

So far, what do private employers know to expect?

  • Employers of 100 or more workers will be required to implement vaccine-or-test mandates. Employees who opt not to be vaccinated will be required to be tested weekly. Employees will need to be provided paid time-off to be vaccinated. Fines could be $14,000 per violation.
    • OSHA has been tasked with implementing guidance explaining this new mandate.
  • Government contractors will be required to implement vaccine mandates for their workers. It appears that this government contractor obligation will not allow a test-out option. It appears that this will apply only to contracts entered into after October 15, 2021. It is noted that this “appears” to be the case, because the Biden administration and its Executive Order on this mandate so specify; however, government contractors should review their current contracts to confirm that they do not already require compliance with future FAR (Federal Acquisition Regulations) that may be adopted during the current contract’s term.
    • It is also noted that the Executive Order does not actually apply to “government contractors.” “Government contractors” is not a phrase defined in law. Rather the Executive Order reaches all federal “contract or contract-like instruments.” It defines that term, as follows:

For purposes of this order, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021).  If the Department of Labor issues a final rule relating to that proposed rule, that term shall have the meaning set forth in that final rule.

    • It is noted that the definition of “contract or contract-like instruments” at 86 Fed.Reg. 38816 is very specific and involved. It does not include all forms of government contracts, but it does include some forms of government relationships one might not consider to be government contracts. In other words, that phrase is a technical legally defined phrase, it is not coextensive with the lay term “government contracts.” Some companies that one might think are “government contractors” will not be covered, and some one might think are not “government contractors” will be covered. It will be a technical issue for review against that very specific regulatory definition.
    • Government contractors are encouraged to provide their current and anticipated government contracts to their attorneys for legal review against 86 Fed.Reg. 38816
    • The Executive Order mandates the federal government to issue further guidance on this government-contractor mandate no later than 9-24-2021, with additional deadlines thereafter through 10-8-2021 for further guidance.
  • Medicare and Medicaid providers as well as some other health-care settings such as some nusing homes will be required to impose some form of mandate.

What don’t we know?

We still know virtually nothing about the specifics of how these mandates will actually work. Hopefully we will be receiving guidance from the various government agencies soon. Questions we still do not know include:

  • How workers will need to be counted for the 100-employee mandate.
  • What government contractors will be subject to the government-contractor mandate (see above re “contract or contract-like instruments” and re new-versus-existing contracts).
  • Whether any or all of these mandates will permit opt-outs or other forms of accommodation for disability or religious reasons. The White House announced that federal workers will have accommodation opportunities, but it is not clear to what extent these new mandates will permit accommodations for private employees.
  • When OSHA will implement the required guidance, though it has been mandated do so within the coming weeks. Whether it will do so by way of a standard or informal guidance. Whether it will issue a proposed then final draft according to normal rulemaking processes, or if, as it appears from the way President Biden described it, OSHA will skip the proposed draft stage and simply issue a final version all at once as an emergency rulemaking.
  • Whether paid time-off to be vaccinated will be required only under the 100-employee mandate, or if it will also be required for government contractors and Medicare/Medicaid employers. Whether paid time-off will be required for testing for those who are allowed to opt-out of vaccination. Whether there will be a pass-through permitted to allow the costs of that paid time-off to be credited against federal taxes for example.
  • What the compliance burden and related costs (including the costs of testing and possibly vaccination) will be. At least some of these expenses will be borne by the federal government, as it has been announced the government will spend $2-billion to acquire new tests.
  • What documentation, recordkeeping, examination/inquiry restrictions and other processes will be required for these various mandates.
  • What end-date these mandates will have, in other words, when they will expire.

What have been reactions so far?

Reactions by the business community continue to be mixed. Many companies have already adopted vaccine mandates, with vax-or-test programs probably being among the most common. For such companies these mandates may provide some clarity as to how companies can best implement such mandates. However, many companies, especially in traditionally red-political communities, face strong pushback from their workers, customers, etc., and have been reluctant to do so.

Is litigation likely?

Litigation is expected to challenge all aspects of the new mandates. It is probable that at least some cases will produce rulings before these new mandates start taking effect. Having said that, employers can expect it to come down to the very wire. Therefore, companies should not simply take a wait-and-see approach. Companies will need to start assessing as soon as possible their obligations, if any, and how they will implement these new mandates. Unfortunately, as noted, companies are having to wait at least for now for further guidance from the various government agencies involved.

 

Vaccine lawsuits rising

Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain accommodations, the importance of considering state laws, and the confusion caused by current vaccines EUA status.

Tenth Circuit holds employer need not, under ADA, accommodate challenges that an employee’s disability imposes “outside the workplace unrelated to an essential function or a privilege of employment”

The Tenth Circuit recently decided a case involving an employee who required a flexible work schedule to do her job. She suffered from a disability related to her vision. She lived 60 miles from the workplace and relied on family and friends for rides to and from work. Her ability to make it to work on time proved a challenge. The company attempted to allow her to work a flexible work schedule, but that also proved unsuccessful, when her actual schedule became “erratic,” which “contributed to low patient satisfaction scores,” “less than stellar” performance evaluations. She sked the company to continue allowing her the flexible work schedule or even to work remotely full time. The company declined.

The Tenth Circuit held that her request to work remotely or on a flexible work schedule would, if granted, have accommodated “her transportation barrier (which was) a problem she faces outside the workplace unrelated to an essential job function or a privileged of employment.” The company could not control where she lived or when she was able to find rides with friends or family. She was in that sense like all employees, whether disabled or not, and nothing in the ADA imposes on an employer the obligation to grant accommodations that solve workers’ personal off-duty challenges. “(E)mployers have no obligation under the ADA to accommodate disabled employees for problems they face outside the workplace unrelated to the essential job functions of their positions or privileges of employment merely because they are disabled.”

Together with another recent Tenth Circuit case, the decision suggests how the courts may approach litigation that may arise as a result of the impact of the coronavirus pandemic on the workplace.

Source: Unrein v. PHC-Fort Morgan, Inc., — F.3d — (10th Cir. 4/8/2021).

Tenth Circuit previews likely ruling when employers require return-to-work following pandemic

A recent Tenth Circuit decision previews courts’ likely analysis when employers begin requiring workers to return to the workplace following the eventual end of the pandemic. In the case, the Court held that making a “transitional duty” permanent is not a reasonable accommodation — in other words is not required by the ADA — especially where it would eliminate an essential function of the worker’s position.

The Court used the phrase “transitional duty” to refer to the employer-prison’s temporary assignment of a disabled worker to relatively light duty that consisted of “sedentary” tasks in the “control room.” The prison provided the transitional duty only as a temporary accommodation of his arthritis pending hip surgery after which he was expected to return to his regular duties as a correctional officer. It was undisputed that the regular duties of a correctional officer included the ability to defend oneself, which he could not do absent successful recovery from surgery. When the temporary transitional duty ended and he was still unable to work as a correctional officer, his employment was terminated. He sued claiming that the ADA required the prison to convert the transitional duty into his permanent assignment. The prison responded and the Tenth Circuit agreed that making his temporary accommodation permanent would not have been a reasonable accommodation, in other words, was not required under the ADA. His job was to work as a correctional officer; the transitional duty was merely a temporary effort to respond to his arthritis and need for surgery.

Just as having permitted that correctional officer to work in the control room was merely a temporary response to the circumstances at the time, one that the ADA did not require to be made permanent, so, now in the context of the pandemic, allowing employees to work remotely, temporarily during the pandemic, does not open the door to ADA lawsuits claiming to make remote-work permanent, at least where attendance is itself an essential function of the job. Readers are reminded that the EEOC similarly recently opined that temporarily eliminating an essential function, in response to specific circumstances such as the pandemic, does not require that elimination to be made permanent under the ADA (or Title VII).

Source: Mannan v. Colorado, 2020 BL 493234, 2020 Us App Lexis 39822 (10th Cir. 12/18/20).

EEOC issues guidance on vaccines

The EEOC issued guidance on vaccines, as subpart K of its Technical Assistance (FAQ) regarding coronavirus. The EEOC’s FAQ is not regulatory, it does not carry the weight of law, and it did not reach any specific conclusions. Rather, it included the EEOC’s current thinking that:

  • It may become possible, as vaccines begin to be available, for an employer to mandate vaccination as a condition of entry into the workplace if the company can establish business necessity and that failure to impose the requirement would pose a direct threat of harm to others or that employee’s own health.
  • The EEOC noted it may or may not also be possible for an employer to mandate vaccination as a condition of employment. In other words, the EEOC said that, while some employers may be able to require vaccination as a condition of physically entering the workplace, to terminate an un-vaccinated employee would require a higher showing to prove business necessity and direct threat. For example, such an employer would have to prove the inability to allow the worker to take leave, to work remotely, etc.
  • In both instances, an employer would have to provide a reasonable accommodation for an employee who declines vaccination
    • Regarding a disability, under the ADA, unless the employer can prove undue hardship, i.e., that “there is no way” to allow the worker into the workplace or just to keep their job without the vaccine, to take leave, if not even to work remotely, and/or
    • Regarding a sincerely held religious belief, under Title VII, unless it would impose more than a de minimis cost or burden to the company to provide such an accommodation.

The EEOC recommends that employers consider, in all circumstances, using a third-party medical contractor that expertly advise workers, obtain informed consent, and manage any questions as well as the administration of the vaccine, and the exchange of any information regarding genetics, within medical confidentiality, such that the worker would, once vaccinate, simply provide the company with documentation of having been vaccinated, ensuring no confidential information is shared with the company.

Employers should first be aware that the EEOC does not have jurisdiction over and did not opine on other federal or state laws, which may well be thornier restrictions for employers who feel required vaccines are needed in their workplaces. Further, multiple states have already begun the process of debating whether to legislate or simply regulate in this area.

Finally, it should be noted that the EEOC was discussing vaccines that have been “approved or authorized” by the FDA. Currently no vaccines have been “approved” by the FDA, some have received an emergency use “authorization.” The EEOC did not discuss the fact that, in the fact sheet supporting the current authorizations, the FDA specifically stated: “It is your choice to receive or not receive the Pfizer-BioNTech COVID-19 Vaccine.” While that statement seems to be limited to a patient’s choice in terms of their own medical care — not their employment rights — that statement’s importance has not yet been analyzed by the EEOC (or the courts).

EEOC updates Q&A, specifically re employees with an underlying disability that puts them at “higher risk” re coronavirus

The EEOC updated its prior Q&A re coronavirus, adding three questions (numbered G3-G5) to address the needs of employees who already suffer from an underlying disability that, now, puts them at “higher risk” related to coronavirus.

First in questions G3-G4, the EEOC advises that an employer is obligated to consider whether a reasonable accommodation exists to permit such an individual to return to work once a request is made. Until a request is made, the employer has no obligation to consider the possibility of a reasonable accommodation. The EEOC explains too that the request need not be made formally — it may be made “in conversation or in writing” — and it need not be made by the employee themselves — it may be made by the employee “or a third party, such as an employee’s doctor.” Indeed the request need not even be a request, it is enough if the employee “let(s) the employer know that she needs a change for a reason related to” an underlying disability.

Question G4 confirms that an employer need not consider a reasonable accommodation even when the company knows the worker has an underlying disability that might put them at a “higher risk” related to coronavirus, until such a request is made. However where the employer is itself concerned that the employee’s disability might put them at a “higher risk” related to coronavirus, the employer cannot on its own initiative “exclude” the worker from work unless it can prove a “direct threat” to the worker’s own health (or the health of others) and, further, that the “direct threat” cannot be removed by reasonable accommodation, such as allowing “telework, leave, or reassignment” if reasonable. The EEOC discusses the possibility of showing such a “direct threat,” noting it “is a high standard,” with proof that “if, after going through all these steps (of considering the relevant risk, the possibility of reasonable accommodation, etc.), the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

Question G5 discusses possible accommodations that should be considered by an employer and worker in trying to determine if a reasonable accommodation might exist to permit a worker with an underlying disability to work despite a “higher risk” related to coronavirus (emphasis added).

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

Religious accommodation need not preserve overtime opportunities

The Tenth Circuit recently decided a case where the plaintiff’s requested religious accommodation gave him the time he needed off for religious reasons but meant losing overtime. The Court held the employer did not have to allow him to work more later in the week to make up for the lost overtime.

The worker had asked for Saturdays off as a religious accommodation. The employer agreed. However, because Saturdays were the day of the week when the worker (and the other workers apparently) worked overtime, it left him with no overtime opportunity. Wanting to keep his Saturdays off, he asked to be allowed to make up the lost hours by working overtime on Sundays. The employer refused.

The Tenth Circuit recognized that granting the worker his requested accommodation of Saturdays off had cost him his overtime opportunities but held that the company was not required to allow him to work make up hours on Sundays. The Court held that an accommodation is reasonable if it allows the plaintiff “to engage in his religious practice despite the employer’s normal rules to the contrary.” Here letting him take Saturdays off allowed him to engage in his religious practices. The Court rejected the argument that Title VII required the company to then allow him to work make-up overtime on Sundays.

Though (the plaintiff) may have requested an opportunity to make up his overtime hours on Sunday, Title VII did not require (the company) to offer (his) preferred accommodation.

The case illustrates Title VII’s basic principle that a worker may be entitled to a reasonable accommodation of his religious practices, and so long as it is effective at allowing him to engage in his religious beliefs, it need not be his preferred accommodation, even where the difference means lost pay opportunities.

Source: Christmon v. B&B Airparts, Inc., case no. 17-3209 (10th Cir. 5/24/18).

Tenth Circuit restates summary judgment test with extensive discussion of multiple ADA and general employment law doctrines

The Tenth Circuit restated the test for granting summary judgment in favor of employers, and in doing so extensively discussed multiple doctrines frequently raised in such motions, including the honest belief doctrine, the adequacy of an employer’s investigation and the reasonableness of requested accommodations. With the regard to the last doctrine, the court noted that, as a matter of law, when workers advise their employers of a disability and request an accommodation after they have engaged in workplace misconduct, it is not a reasonable accommodation to ask that such misconduct be excused due to their disability. The court cited its 2004 precedent, Davila v. Quest Corp., Inc., for the proposition that “excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.” The Court concluded that “a denied request for retroactive leniency cannot support an accommodation claim.”

The case was DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017).