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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.

EEOC issues new guidance on religious accommodation obligations

The EEOC issued new guidance on religious accommodation obligations imposed by Title VII. The guidance is not regulatory, it was not issued through the formal rulemaking process, and therefore does not enjoy deference in courts, although it is a statement of the EEOC’s opinion of the law for so long as it is in effect. Topics addressed include prayer breaks, contraceptive coverage, LGBTQ+ protections, expression including not only the wearing of religious garb but the expression of religious faith.

DOL expands religious exemption from EEO laws to federal contractors even if closely-held corporations

Continuing to expand on religious exemptions from EEO laws recognized by both the Supreme Court and itself, the DOL has expanded, in a final rule applicable to federal contractors, the religious exemption to now include even closely-held corporations so long as the company qualifies as a religious organization.

To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

As an example, the DOL gives, in its rule, a small business that makes candlesticks for churches:

41 CFR 60-1.3(4)(i)(A) Example. A closely held for-profit manufacturer makes and sells metal candlesticks and other decorative items. The manufacturer’s mission statement asserts that it is committed to providing high-quality candlesticks and similar items to all of its customers, a majority of which are churches and synagogues. Some of the manufacturer’s items are also purchased by federal agencies for use during diplomatic events and presentations. The manufacturer regularly consults with ministers and rabbis regarding new designs to ensure that they conform to any religious specifications. The manufacturer also advertises heavily in predominantly religious publications and donates a portion of each sale to charities run by churches and synagogues.

Will employers be able to mandate vaccines?

Wondering if employers will be able to mandate vaccines? Long story, short, we don’t yet fully know. It is likely that employers will be able to mandate vaccines — at least as a condition of entry into some workplaces if not as a condition of continued employment — so long as it is required by a business necessity and so long as appropriate opt-outs are permitted especially for religious or disability reasons. Employers with unionized workforces may need to engage in bargaining with their unions, first, unless clear and unmistakable language in the CBA already allows unilateral action. However, federal and state officials throughout the country have said they are currently analyzing the issue and hope to issue guidance soon.

In the meantime, if you’re looking for a couple good reads on the subject as an introduction to these issues, you may want to start with two thought pieces on the issues: one by Holland & Hart attorney Brad Williams available here and the other by SHRM available here. With regard to just the EEO laws, especially Title VII’s religious protections and the ADA’s disability protections, interested readers may also like to review the EEOC’s 2009 thoughts from the H1N1 pandemic, especially question 13. Again, though, hopefully the EEOC, along with the DOL and the various state and local agencies, will all be updating their guidance shortly within the context of the current coronavirus pandemic.  

Stay tuned for future updates as guidance becomes available. 

Supreme Court expands religious exemption from Obamacare contraceptive requirements to private employers

When passed, so-called “Obamacare” contained exemptions from its contraceptive-coverage requirements for religious organizations and other non-profits that hold sincerely held religious objections. Following a series of regulatory developments and judicial decisions, eventually, by 2018, the Trump Administration expanded the exemptions to include private employers, including even publicly traded companies, and secular universities, even with regard to their student health care coverage.

In a fractured decision, the Supreme Court upheld the Trump Administration’s 2018 rule, at least for now. It is not clear from their fractured opinions whether the opinion resulted in a flat-out win or simply a remand. At least 2 of the Justices (Breyer and Kagan) whose votes are included in the 7-vote majority, wrote a concurrence outlining why they believe the Trump Administration may ultimately lose the case on remand. Commentators have already begun noting their belief that the case will not be successful on remand and is likely to return on appeal to the Supreme Court.

Source: Little Sisters of the Poor v. Penn., case no. 19-431 (7/8/2020).

SCOTUS rules for baker in Masterpiece Cakeshop

By 7-2, the Supreme Court ruled for the baker in the Masterpiece Cakeshop case. All seven of the judges that formed the majority were struck by comments from the Colorado Civil Rights Commissioners that evidenced an anti-religious bias among the Commissioners when they decided the case. The Supreme Court called those comments “inappropriate,” “dismissive,” and “disparag(ing) of religion.”

What were these unacceptable comments? Well, in short, they included what can only be described as a gratuitous rant by one Commissioner about how, in her opinion, “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … we can list hundreds of situations.” It really didn’t help when the Commission, faced with three different cases involving bakers who refused to sell anti-gay marriage cakes, held for each of those bakers. The Supreme Court held that, pulling that all together, it seemed the Commission had made its decision not on the evidence and law but “the government’s own assessment of offensiveness.”

Along those lines, Justice Gorsuch, in his concurrence, noted that, if the government could make decisions on the basis of what it deems offensive, freedome of speech and expression would be lost. This is the oft-recognized principle that the only speech that really needs Constitutional protection is offensive speech.

The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.

In reversing based on the Commission’s own bias, the Supreme Court never reached the underlying question whether/when does a baker/florist/other expressive craftsman have a First Amendment right to refuse to sell their good/service to a consumer for religious reasons. Instead, the Supreme Court held that the baker had at least been entitled to a fair hearing of that issue, and that the Commission’s own bias had stripped him of that right.

(T)he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Justice Kennedy — who has been the Court’s champion of both gay rights and speech rights, as well as religious liberty rights — wrote the majority opinion. He acknowledged that the Court was dodging the real question of how to balance those rights.

The outcome of cases like this in other circumstances must await further elaboration in the courts….

Still, his opinion suggested how he thought the Court should rule in future cases.

Some examples of cases where he suggested future bakers/florists/etc. might lose on the merits included the following:

  • A baker who “refused to sell any goods or any cakes for gay weddings”

Some examples of future cases where bakers/etc. might win included the following:

  • A “refusal to put certain religious words or decorations on the cake”
  • A “refusal to attend the wedding to ensure that the cake is cut the right way”
  • A “refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it”

We may not have to wait long to find out how the Supreme Court will rule on the underlying issues. A similar case — involving a florist from Washington — is already pending a decision by the Supreme Court whether to hear the appeal in the fall.

Separate opinions in Masterpiece Cakeshop seemed to preview how the Justices might vote:

  • Justice Gorsuch wrote suggesting that he is likely to rule broadly for future bakers/florists/etc.
  • Justice Thomas wrote along such lines as well, though his opinion suggested concern over the concept of even trying to protect the rights of a gay couple in this type of circumstance.
  • Justices Kagan and Breyer, who joined the majority in this case, suggested they would lean split on future cases, ruling against bakers/etc., where there is no evidence of anti-religiouis bias among the state agencies.
  • Justice Ginsburg joined by Justice Sotomayor wrote to express their concerns that the anti-religious comments by the Commission, while unacceptable, were simply not so substantial as to warrant reversal; they would have ruled on the merits, and in doing so, for the gay couple who wished to buy the cake.

That means future cases are likely to have 4 Justices inclined to rule for and 4 Justices inclined to rule against the bakers/florists/etc., and as was expected here, Justice Kennedy is likely to be the swing vote. Expect to see him flesh out his balancing test based on those examples.

As for future cases, Justice Kennedy gave one word of warning — frankly simply restating the concern most of America seemingly has had and had hoped the Supreme Court would wrestle with in this decision — that these rights must be balanced such that religious liberty is not so broadly defined that it becomes an easy excuse for discrimination:

And any decision in favor of (a future) baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.

Readers of course will note that this concern exists not only as to LGBTQ individuals (which is all that quote discusses) but also individuals on the basis of race, gender, age, etc., and, yes, even religion. It simply cannot be the law that a business may refuse to do business on the grounds that a consumer is of a different race, color, gender or even religion.

Readers should also note that this line of cases isn’t just about consumers, and it certainly isn’t about just cakes. This line of cases has potential to touch all aspects of American life. It cannot be, for example, that a business has a right to refuse to hire someone simply because they assert a religious belief against that person’s sexual orientation, gender preference, race, gender, religion, etc.

Source: Masterpiece Cakeshop, Ltd. v. C.C.R.C., case no. 16-11 (Sup.Ct. 6/4/18).

Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.

Trump Administration moves to expand religious — and moral — liberties of employers

President Trump campaigned, in part, on a promise to expand religious liberties. Following up on that promise, his Administration recently announced a series of new changes — changes that have already sparked litigation and are expected to be highly controversial. Many argue these changes are not only highly controversial but come at the expense of the rights of others.

On May 4, 2017, the President issued a Memorandum for all Executive Departments and Agencies in which he commanded all executive departments and agencies to “respect and protect” religious rights “to the greatest extent practicable and to the extent permitted by law.”  The only specific mandate his Memorandum highlighted (Sec. 3) was for Treasury to develop “conscience-based objections to the preventive-care mandate” under Obamacare. Likewise the Memorandum (Sec. 4) specifically commanded the Attorney General to issue occasional “Religious Liberty Guidance(s).”

Accordingly, it came as no surprise then when, on October 6, 2017, Attorney General Sessions issued his own Memorandum for all Executive Departments and Agencies articulating “twenty principles” designed to “guide administrative agencies and executive departments.”

Religious liberty is a foundational principle of enduring importance in America, enshrined in our Constitution and other sources of federal law. As James Madison explained in his Memorial and Remonstrance Against Religious Assessments, the free exercise of religion “is in its nature an unalienable right” because the duty owed to one’s Creator “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.” Religious liberty is not merely a right to personal religious beliefs or even to worship in a sacred place. It also encompasses religious observance and practice. Except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting, and programming. The following twenty principles should guide administrative agencies and executive departments in carrying out this task.

And, on the same day, Treasury issued two sets of interim final rules, that took effect immediately, authorizing employers to claim an exemption from Obamacare’s contraceptive mandate. The first (published in the 10/13/17 issue of the Federal Register at 21851) expands the current right of some entities and individuals to opt out of Obamacare’s contraceptive provisions on religious grounds. Now, religious objectors include churches and their auxiliaries, nonprofits, for-profit entities, other non-governmental employers and certain institutions of higher education. The for-profit employer provisions expand the Supreme Court’s holding in Hobby Lobby, which had authorized closely-held for-profits to opt out on religious grounds. Now for-profit employers that are not closely-held, even publicly-traded companies, may also be religious objectors.

Objectors need not be entities either. Individuals may object to participating in contraceptive coverage, though their objection cannot force a plan to drop such coverage for others.

The second set of interim rules outlines a process for moral objectors. The rules distinguish between “moral convictions” and “religious beliefs,” but, in a move sure to spark significant litigation, they do not define the term “moral.” Whatever that term might mean, it is clear from the language of the rule that a moral conviction need not be based in a religious belief.

Employers interested in utilizing either of these rules should know that lawsuits have already been filed. Further litigation is likely for years to come. And, as cautioned by the Society of Human Resources Management (SHRM), employees may well respond unfavorably. It is estimated that over 55-million women have access to contraceptive care as a result of Obamacare’s mandate. One commentator in SHRM’s article predicted, “There would be tremendous employee relations repercussions if employers took this benefit away, especially given how many women are in the workforce, and I’m sure some employers have done the math comparing maternity costs to the cost of providing contraception.”

Source: Treasury’s final interim rules: 2017-21851.pdf and 2017-21852.pdf