Vaccine Legal Roundup with Mission Counsel

Mission Counsel is a Nonprofit Connect Business Member. They are a small local law firm dedicated to the success of nonprofits and businesses by providing legal counsel focused on advancing their clients' missions. Learn more about their services here.

Terry Mosteller of Mission Counsel will be speaking with Nonprofit Connect Members on October 12 about "Vaccine Requirements: What You Need to Know". Learn more and RSVP here.

The COVID-19 pandemic has certainly placed a host of various issues before nonprofit leaders: cancellation of events; sudden drops in donations; moving to remote work virtually overnight; figuring out how to keep staff and clients safe from infection; and on and on. Over the past few months, however, another issue has come to the forefront: how the availability of COVID-19 vaccines will impact nonprofits as employers and service providers. In this article I hope to touch on at least some of the primary questions that have been raised surrounding COVID-19 vaccines and how those vaccines impact the nonprofit sector.

Federal Vaccination Mandate for Large Employers

Of course, the question that has generated the most headlines lately has been President Biden’s “Path Out of the Pandemic” set of executive orders which, among other things, includes a federal mandate that all private employers with more than 100 employees require employees to either be vaccinated or subject to weekly COVID-19 testing. As of this writing (09/23/2021), the Occupational Safety and Health Administration (OSHA) has not yet issued regulations (referred to as an Emergency Temporary Standard, or ETS) that implement President Biden’s orders, so much is still unknown as to how, precisely, the order will be implemented. Many experts believe OSHA will issue the ETS within 30 to 60 days of the President’s order, so look for that to come likely sometime during the month of October or perhaps early November.
While we wait for the ETS to give us final answers, we do know some things. For example:

• Employers must either require employees to be vaccinated or submit to testing (no less than weekly);
• Employers will be required to provide paid time off to workers to get vaccinated and recover from any side effects;
• Employers must pay nonexempt employees for the time spent undergoing testing;
• Employers will almost certainly have to accommodate employees with medical/disability exemptions or religious objections;
• Penalties for employer non-compliance will be $14,000 per violation

Among the numerous questions that remain are:

• Are employers required to obtain proof of vaccination or can they rely on employees’ assertions?
• How is the 100-employee threshold counted? Are subsidiaries lumped in with parent organizations? What about organizations with multiple locations?
• What types of tests will satisfy the testing requirements? Are only PCR tests allowed? Or do rapid-tests also count?
• What about remote employees?
• Will the monetary fines for non-compliance be based on the workplace as a whole? Or per employee?
• Will employers have to maintain and submit records to OSHA?

As is obvious, this is a highly fluid situation. Once OSHA issues the ETS, we will have a much clearer idea of what compliance for large employers will look like. Even once the ETS is issued, however, there is likely to be significant litigation over the legality of President Biden’s order. In fact, the Attorneys General of twenty-four states have written a letter to the President threatening to bring lawsuits challenging the constitutionality of the order. How courts will analyze the legal and constitutional questions remain to be seen. The federal statute authorizing OSHA to issue an ETS requires that OSHA can do so only once it determines “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that the ETS must be “necessary to protect employees from such danger.” These questions will ultimately be resolved by the courts.
 

State and Local Vaccination Mandates

To date, no state or local vaccine mandates have been implemented in Kansas, Missouri, nor in any counties or cities in either state. Given the political climate in both Kansas and Missouri (and the fact that the Attorneys General of both states joined the letter to the President officially opposing his vaccine plan), it is doubtful that either state will issue a vaccine mandate. Whether any cities or counties will attempt to impose a vaccine mandate remains to be seen, although last June, Missouri governor Mike Parson signed HB 271 into law which, among other things, severely limits local health agencies’ ability to issue public health orders and prohibits cities and counties from requiring documentation of vaccination status (so-called “vaccine passports”) in order to access public services. Similar legislation has not yet passed in Kansas, though it is entirely possible something similar could pass in Topeka once the legislature reconvenes in January of 2022.
 

Employer Vaccination Mandates

While any state and local level vaccine mandates are unlikely to materialize anytime soon, many private businesses and nonprofit organizations either have imposed some level of vaccination requirements or are considering doing so. Many local nonprofit health organizations and hospitals have imposed vaccination requirements. A recent study by the Greater Kansas City Chamber of Commerce found that 85% of local businesses and nonprofits are not requiring vaccines at this point, while 34% are incentivizing vaccination in various ways (e.g., cash bonuses or increases in paid time off). Regardless, every organization is having to deal with vaccines and how to handle them for their employees, volunteers, and clients.

For organizations interested in requiring employees to be vaccinated, the first question often is asked is: is it legal for us to require our employees to be vaccinated? The simple answer is yes, in most cases and if structured and administered properly, employers (including nonprofits) may require their employees to receive the COVID-19 vaccination. In May of 2021, the federal Equal Employment Opportunity Commission released a fact sheet addressing employer handling of vaccines under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. The EEOC’s main point is that as long as an employer maintains compliance with both the ADA and Title VII, the employer can, in fact, mandate COVID-19 vaccines for its employees. Of course, maintaining compliance with those two landmark employment laws is much easier said than done. So what does that compliance look like?

In general, both the ADA and Title VII require an employer to provide an employee with a “reasonable accommodation” if, for reasons of either disability or sincerely held religious beliefs, that employee chooses not to comply with the employer’s vaccination requirements, provided that the accommodation does not pose an “undue hardship” on the employer. What would a reasonable accommodation look like? The EEOC gives examples of steps the employer can take in lieu of requiring a vaccination: moving the employee to remote work; mandating mask wearing; enforcing social distancing requirements; imposing regular COVID testing; and other reasonable efforts.
It is important to note here that “undue hardship” is defined differently under the ADA and Title VII. Under the ADA, for an employer to show an undue hardship, it must show that the reasonable accommodation would cause significant difficulty or expense, while under Title VII the employer must only show more than a de minimus cost.
 

Employee COVID-Related Health Information

If, in furtherance of its vaccine-related policies, an employer gathers information related to an employee’s vaccine status, disability status, or other health information, the employer must take extra precautions to protect that information and maintain its confidentiality. An employee’s vaccination status is considered employee medical information under the ADA and must be kept separate from the employee’s regular personnel file.
But what if an employee tests positive for COVID-19? Do employers have to notify other employees that there has been a positive case? Generally speaking, per the CDC and OSHA, an employer should notify other employees that there been a positive case. In doing so, however, the employer should take special care to protect the positive employee’s medical information and such notification should not include the positive employee’s name or other identifying information.

Of course, there are many other questions that nonprofit leaders are facing. Identifying and responding to all of those questions is certainly beyond the scope of this blog post. If you are looking for more information, I strongly encourage you to attend Nonprofit Connect’s upcoming webinar on this topic on October 12 at 10am. Registration is free for Nonprofit Connect members. During this hour-long session, I’ll present the most up-to-date legal information related to vaccines and other COVID-19 issues for nonprofit organizations, plus we’ll have an open-ended Q&A session.

I hope to see you there!
Terry