A blog of some of the prior week’s more important federal, state and local payroll stories. This week’s focus is on the list and legality of employee vaccination requirements.
The List and Legality of Employee Vaccination Requirements
According to the Centers for Disease Control (CDC) website, the seven-day moving average cases for the coronavirus (COVID-19) is 119,523, as of August 13, 2021. This number was just under 35,000, as of July 13, 2021. These spikes in positive cases of COVID-19 in the U.S. has caused some states to take executive or legislative actions regarding the COVID-19 vaccine and masks, specifically for some employees.
Back in June of 2021, President Biden ordered every federal government employee and onsite contractor to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice-weekly screening testing requirement, and be subject to restrictions on official travel. The federal government employs more than four-million people. Biden is also encouraging employers across the private sector to take similar steps.
Several states and some localities have imposed COVID-19 vaccine requirements for employees. Also, some mask mandate requirements have come back that includes mandates for employees. In this blog, I’ll list and describe the vaccine and mask mandates. I will also go over the legality of requiring that employees vaccinate with information from the Equal Employment Opportunity Commission (EEOC) and some recent court cases.
There are new COVID-19 vaccination requirements for Golden State employees and health care workers. Effective August 2, 2021, employees of the State of California must either show proof of full vaccination status or be tested for COVID-19 at least once a week and wear appropriate personal protective equipment (PPE). Health care and high-risk congregate settings (i.e., adult and senior residential facilities, homeless shelters and jails) are subject to similar requirements as of August 9, 2021. Health care facilities have until August 23, 2021 to fully comply with the requirements.
On August 5, 2021, the California Department of Public Health issued the first mandatory vaccination order in the United States. It applies to all workers who provide services or work in health care facilities (i.e., hospitals). These workers must be fully vaccinated by September 30, 2021. There is an exemption from this requirement due to religious beliefs or qualifying medical reasons. Exempt workers must test for COVID-19 two times per week and wear an approved mask at all times. Employers must maintain records of workers’ vaccination or exemption status and COVID-19 results.
The Constitution State is now requiring the COVID-19 vaccine for employees of “long-term care facilities.” The Executive Order was issued on August 6, 2021 and says that these facilities include: nursing homes; residential care homes; assisted living services agencies; intermediate care facilities for individuals with intellectual disabilities; managed residential communities; and chronic disease hospitals. By September 7, 2021, current employees, volunteers and contractors with physical access to patients or residents must be fully vaccinated against COVID-19 or have received the first dose of a COVID-19 vaccine and received a second dose or have an appointment for the second dose. These facilities are not permitted to extend an offer of employment to an individual unless these requirements have been met. The facilities must authenticate the vaccination status of the individuals. Failure to comply with the Executive Order will result in a $20,000 per day fine. Masks are not required while eating or drinking. It can be assumed that employees on a meal break in an employer’s break room do not need to wear a mask.
Connecticut also has an Executive Order for a mask mandate. The mandate requires individuals who are indoors, are not able to maintain a safe social distance and who are not vaccinated to wear a mask. Exceptions for medical conditions apply. There will be a $100 fine for failure to comply with the mandate. The employer, rather than the employee, is liable for the fine for any employee’s failure to wear a required mask while at work. The Connecticut Commissioner of Public Health will issue a rule setting forth a comprehensive list of facilities, venues, and other locations where masks and cloth face coverings are required, including for people who are vaccinated, and will amend said rule as the Commissioner determines is warranted by public health conditions.
In the Peach State, Atlanta Mayor Keisha Lance Bottoms has issued an Executive Order that requires all persons in a public place, including private businesses and establishments, to wear a mask or a cloth face covering over their nose and mouth when indoors. In the Order, an entity is described as any private business, establishment, corporation, non-profit corporation, or organization. This action was taken in an effort to slow the spread of the COVID-19 virus. The Order notes that exceptions to the mandate include bona fide religious objections. The Order does not detail what may qualify and how an individual may inform his/her employer of such an objection, or if an employer must document the objection for recordkeeping purposes. Individuals are not required to wear a mask while eating or drinking. The Order does not specifically say employee meal breaks, but it can be inferred that employees on a meal break can take off the mask. There are penalties for noncompliance with the Order that begins with a warning and escalate to a $25 (first offense) or $50 (second and subsequent offense) fine. The Order does not appear to say if an employer must report an employee who refuses to wear a mask or if an employer would be fined if it did not enforce the Order.
The Pelican State has imposed a statewide mask mandate after the Governor renewed the public health emergency. Citations will be written to businesses or organizations that failed to enforce the requirement to wear masks. Business operators and organizations may rely on the representations of their employees regarding whether or not they qualify for an exception from the mask requirement. The mask requirement does not apply to any individual who is consuming food or drinks. The requirement also does not apply to athletes participating in athletic activities. This may mean that employees in a break room on a meal break can remove their masks. This may also mean that professional athletes do not need to wear a mask when engaging in sports. The mandate does not look to specify if athletic activities include exercise at a fitness room in an employer’s business location if the facility has such an amenity.
In the Garden State, there is a requirement for employers in covered healthcare and high-risk congregate settings that mandates vaccination or weekly testing for workers. There will also be a system to track the results of the testing requirements and creates a system to communicate the results to local public health departments. Executive Order 252 takes effect on September 7, 2021 applies to full-time employees, part-time employees, contractors, and any other individual working at the covered setting. Penalties for violations of the Order may be imposed.
New Jersey also has an Executive Order that requires all public, private, and parochial preschool programs and elementary and secondary schools, including charter and renaissance schools (collectively “school districts”), to maintain a policy regarding the mandatory use of face masks by staff and others (i.e., students and visitors). There are exceptions to this requirement such as when eating or drinking. This assumes teachers and other school staff can remove their masks when eating or drinking in the school cafeteria or when eating or drinking in a break room. Penalties for failure to comply may apply.
The Land of Enchantment State has an Executive Order in play that requires state employees to comply with certain public health requirements such as the wearing of masks during the course and scope of their employment. State employees not fully vaccinated must provide proof of a negative COVID-19 test within the past seven days every two weeks. Refusal to abide by the requirements may result in action that includes termination of employment.
The Governor of the Island of Enchantment has signed an Executive Order making the COVID-19 vaccination mandatory for all public employees in the Executive Branch. It takes effect on August 16, 2021, and also requires that employees of hotels, hostels and guesthouses submit evidence to their employer of having received at least the first dose of a COVID-19 vaccine and be fully vaccinated by September 30, 2021. The Order also recommends that all commercial establishments and private entities that are open to the public implement similar requirements. There are exceptions to the requirements for certain individuals. Employers may allow employees to use paid and unpaid leave for the vaccine requirements. Failure to comply may result in fines of up to $5,000, six months in jail or both, at the discretion of a court. Also, the Puerto Rico Secretary of Health has issued an Administrative Order reinstating masking requirements for fully vaccinated people in all indoor spaces.
The Old Dominion State has an Executive Directive for ensuring a safe workplace in effect. It requires all Virginia Executive Branch employees and state contractors who enter the work place or who have public-facing work duties to disclose their vaccine status to the designated agency personnel. Those who are not fully vaccinated or who refuse to disclose their vaccination status must undergo weekly COVID-19 testing. Those who are not fully vaccinated must wear a mask. The Virginia Department of Human Resource Management must issue policies, procedures, and guidance to implement this Directive no later than August 15, 2021. The Executive Directive takes effect on September 1, 2021. The Directive says that, “In order to protect the safety of Virginia’s workforce and the people we serve, it is necessary to require state employees to be vaccinated and to encourage other employers to do the same.”
In the Evergreen State, an Executive Order requires all employees, on-site independent contractors, volunteers, goods and services providers, and appointees of designated state agencies to be fully vaccinated against COVID-19 on or before October 18, 2021. The Order prohibits such individuals from working for a Washington State agency after October 18, 2021 if the individual has not been fully vaccinated. This requirement includes health care providers and entities that operate a health care setting. There are exemptions from the vaccine requirement. Violations of the Order may result in penalties.
Legality of employers requiring COVID-19 vaccines from the EEOC.
At the end of May 2021, the Equal Employment Opportunity Commission (EEOC) provided technical assistance regarding its laws to explain that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.
Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA. Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive.
Termination for noncompliance.
Can an employer terminate an employee who does not comply with a COVDI-19 vaccine requirement? In June of 2021, a federal judge in Texas upheld the Houston Methodist Hospital’s COVID-19 vaccine requirement by dismissing a lawsuit that claimed vaccines against COVID-19 are experimental. The dismissed lawsuit was filed by some 117 unvaccinated employees who were told to vaccinate or be terminated from employment. The judge said that if individuals did not like the employer’s vaccine requirement, they could find employment elsewhere [Bridges v. Houston Methodist Hospital, S.D. Tex., Dkt. No. 21-1774, 06/12/21].
States that banned vaccine mandates.
Just as some states have mandated vaccines for certain employees, other states have banned such requirements. As of early August, nine states have enacted laws that prohibit vaccine mandates. Some of these prohibitions object to the vaccine being only emergency approval by the Food and Drug Administration (FDA). The prohibition will no longer apply if the vaccines get full approval from the FDA.
Montana is a state that recently passed legislation that prohibits discrimination in the state based on vaccination status or possession of an immunity passport by an employer. However, the law provides special provisions for health care facilities. A health care facility and other employers may require employees to wear masks. Employers may offer incentives for employees getting a vaccine. There is a list of FAQs on House Bill 702.
Questions regarding some requirements.
There are some questions to consider as a result of these vaccine orders and mask mandates. For one, will employees be compensated for the time it takes to schedule and take a COVID-19 vaccine if it is required by the employer? Will it be permitted during business hours and will the employer provide paid leave to the employee for the time spent vaccinating? For the mask mandate, will employees be permitted to remove their masks in a company break room while on a meal break? Some of the mask mandates say that a mask is not required when eating and drinking. Can it be inferred that this applies to employer break rooms? And does social distancing need to be observed in said break room during meal breaks by employees?
There is bound to be state and local guidance to help answer these questions and others in the future. We will follow up with more information as it becomes available. In addition, please reach out to a sales or service specialist at Thomson Reuters Checkpoint for information on how our products can help you navigate through payroll tax and non-tax topics.