Over the weekend, I was joking with a friend that we’ve seen more changes in employment law in the last 18 months than the last 18 years.
That’s an exaggeration of course. But it certainly does feel like there’s been a lot of changes. Sometimes it’s hard to catch up. So rather than a long post, I want to just highlight three items for employers to think about this week that all relate to vaccination news.
- There’s still no OSHA Emergency Temporary Standard. Yet. What is the ETS? It’s going to be a rule that requires employers with 100 or more employees to require mandatory COVID-19 vaccinations for their employees or have those employees test on a weekly basis. But we continue to await details on it; numerous press reports keep suggesting that it’ll be released any day. If I had to guess, I’d expect this to come out on a Friday around 4:30 p.m. because the ETS will become effective when released. This will at least give companies the weekend to consider it. (Pity the employment lawyers working on this, at least a little.)
- On Monday, the EEOC released updated guidance on how employers should consider religious exemptions requests to mandatory vaccination policies. I’ll have an full update on our sister employment law blog in the next day, but the headline on this is that the guidance is frankly consistent with all the other prior guidance released by the EEOC previously. Requests should be considered on an individualized basis and it remains a challenge for employers to question a “sincerely held” religious belief.
- The deadline for federal contractors to have employees vaccinated is coming up quickly — December 8, 2021. Remember that these employees will not have a “test out” option though religious and medical exemptions may still be made on a case by case basis. Why is the deadline coming up quickly? To state the obvious, it takes 5-6 weeks for full vaccination under the Pfizer or Moderna vaccination protocols. That means employers should be getting employees to start now. (J&J shot recipients have a few more weeks.)
Thus far, mandatory vaccination policies continue to be upheld by the courts. Whether new challenges the federal requirements will be successful remains unknown but employers shouldn’t wait. The time to implement these policies (if applicable) is now.