As COVID-19 rules and regulations continue to change, employers should be reminded of two important aspects of some of the new vaccine mandates and periodic testing requirements. Employers in many states are permitted to implement vaccine-or-test programs or vaccine mandates for all employees. However, with each of these options for creating a safer workplace and preventing the spread of COVID-19, employers must also consider potential discrimination issues and the associated costs with implementing these new prevention and safety programs.

Vaccine-or-Test Programs

First, vaccine-or-test programs are plans that actively support a safe work environment by requesting that employees either self-attest or provide proof of vaccination or, alternatively, agree to regular COVID-19 testing. Although the vaccine-or-test program can potentially present less employment discrimination issues, it may come with costs that many employers fail to consider before choosing to implement this sort of program. Employers may choose to implement periodic testing for unvaccinated employees if those employees’ presence at the workplace pose a direct threat to others. While regular testing gives unvaccinated employees the freedom to opt out of vaccination and continue to work in locations that do not have state-imposed vaccine requirements, it can get costly for employers. Most businesses allowing a regular testing option are incorporating a testing schedule for weekly testing (or even daily testing). However, in some states and locales, when unvaccinated employees opt for regular testing as a requisite of their employment, employers may be obligated to compensate employees for testing.

Pursuant to the Occupational Safety and Health Administration’s (OSHA) COVID-19 Healthcare Emergency Temporary Standard (ETS), if an employer requires employees to be tested for COVID-19, the employer must pay for the cost of the test, the time spent to get tested or the time waiting for the results, and if the test is administered somewhere other than the worksite, the time spent travelling to the test site and travel expenses. Similarly, California has imposed requirements on employers to pay for COVID-19 testing, testing time, and travel time. As more states issue additional guidance on employers’ requirements for testing in compliance with health orders and labor laws, employers should consult a lawyer for advice specifically tailored for their internal COVID-19 plan. For frequently asked questions and additional resources on remaining compliant with OSHA’s ETS, click here.

Vaccine Mandates

Second, some states are moving toward vaccine mandates and in others, employers have the discretion to decide whether to require vaccination as a requisite to continued and future employment (click here for vaccine requirements for employees by jurisdiction). However, in most states where there are vaccine mandates, there are also exemptions to the mandate and other nuanced aspects of these new requirements to ensure compliance with the Fair Labor Standards Act (FLSA), Families First Coronavirus Response Act (FFCRA), Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other applicable labor laws. Some of the exemptions require employers to engage in an interactive process with employees seeking exemption. The interactive process allows the employer to identify and implement reasonable accommodations for exempt employees unless such accommodations would cause an undue hardship on the employer.

In most states, there are medical/disability/pregnancy exemptions and religious exemptions. In many instances, requests for medical exemptions can be supported by signed statements from licensed physicians and other medical staff. However, the ADA restricts what an employers can ask about employees’ disabilities, so be sure to consult an attorney before soliciting medical information from employees. Meanwhile, religious exemptions are less likely to be supported by a signed statement or any other evidence. Under Title VII, an employee’s sincerely held religious, ethical, and moral beliefs are protected against employment discrimination. Due to the ambiguities in determining one’s sincerely held beliefs, many states and employers differ on how to handle religious exemptions.

COVID-19 regulations and vaccine requirements are changing regularly. This blog post only identifies a few common issues that may arise with the existing rules in various jurisdictions. The Equal Employment Opportunity Commission (EEOC) provides guidance on some of the issues that employers may encounter. There are other jurisdictional considerations that may be essential to your business’s compliance with current and future guidelines. Consult a lawyer to ensure timely compliance with federal, state, and local rules and regulations.

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This post is for informational purposes only, and merely recites the general rules of the road. Lots of legal rules have exceptions, however, and every case is unique.  Never rely solely on a blog post in evaluating your situation — always contact an attorney when your legal rights and obligations are on the line.