Mandate Madness

Since the first mandate dropped back in August, CEDR has been stuck in high gear answering questions concerning all things vaccine-related. As a matter of fact, HR experts from our Solution Center recently conducted eight state-specific, vaccine-related webinars for our members in just one week!

Considering work-required and state-mandated vaccines, prior to Covid, are … This text opens a new tab to an NPR article…nothing new, we’ve had years of experience advising members about the compliance issues that continue to swirl around this type of legislation.

Today, I’ll be answering some of the questions we see most often from our CEDR members for the members of the AADOM tribe. As you read through today’s HR Tuesday, keep in mind that I am going to start with HR guidance at the federal level and then touch on the new state mandates.

Frequently asked questions about vaccine mandates

What exemptions apply to vaccine mandates, and how do I document them?

There are currently only two valid exemptions for refusing to comply with a vaccine mandate that is in place:

1. Medical exemptions which require verification from a doctor, and
2. Religious exemptions are best supported by a written statement, either from the employee or, preferably, a religious leader, outlining the sincerely held spiritual belief which prevents the employee from getting the vaccine.

For the most part, the medical exemption is straightforward, although there are certainly exceptions. In many cases, the type of medical professional who writes the exemption matters. For example, a physical therapist cannot write a vaccine exemption. Many of the state regulations require any medical professional who writes an exemption to hold a specific state license status.

However, when it comes to trying to determine what constitutes a “sincerely held religious belief,” you can find yourself in waters that are hard to navigate. Sometimes employers are surprised to learn that there is leeway for them to decide whether or not to grant the exemption when it comes to religious exemptions.

Our members are often asking where to find a standardized exemption form to fill out. Then they want to know where they should send it once it is filled out. Those same employers are often surprised to learn: One, there is no fixed form in place to fill out. Two, none of the documentation has to be filed with the state, rather, kept in your own HR records on the off chance your compliance gets brought into question, and, three, whether the exemption is granted, especially in the case of the religious exemption, is mostly up to you. This is where our best guidance has always been to allow the exemption request 99% of the time. Unless you have incontrovertible proof that they are trying to game the exemption, we typically default to, “just accept it.”

Both exemptions, medical and religious, are well ensconced within long-standing existing laws. Outside of those two, there are no other valid exemptions to vaccine mandates. Political beliefs, no matter how sincerely held, do not apply. Nor are exceptions made for those who believe the mandate is unconstitutional. What’s more, the exemptions only apply to the vaccine itself. I bring up the political and constitutional exemptions because we are occasionally seeing documents being turned into managers where the employee is claiming one or both of those exemptions.

One other twist is that we see a document stating that your employee is refusing to be tested weekly due to a religious belief, but, in the case of testing, there are no applicable exemptions.

So to summarize, currently, there are no supporting regulations for exemptions that apply to weekly medical testing, PPE, masks, political, or constitutional requests. When it comes to mandated vaccine exemptions, it’s medical, religious, or none of the above.

I have an employee who won’t get the vaccine, and there’s a state mandate here. Now what?

If an employee is still refusing the vaccine, you will, of course, need to look at each … This text opens a new tab to employer resources by state…state’s guidance and recommendations in place. Every single state that has passed a mandate has done so with different conditions and outcomes in mind.

Once an employee tells you they won’t be vaccinated, in Illinois, for example, the answer is simple. That’s because any health care worker who qualifies in Illinois and doesn’t want to get vaccinated has the option of weekly testing and is required to do so. So, once employees in Illinois say no to the vaccine, you don’t even have to worry about why. It’s off for testing every single week no matter what.

For most other states, however, refusing a vaccine without the employee citing and providing documentation of one of the two existing exemptions means you will need to begin the process of separating from that employee. For example, in Washington, and most other states with mandates in place, the least risky course of action is to follow the law which requires you to take steps to terminate that employee. We recommend that you carefully … This text opens a new tab to a separation guide…document the separation.

What if there isn’t a mandate in my state, but I want to require the vaccine or weekly testing?

You can, according to guidance from the EEOC and on a federal level, make vaccines a work requirement at your business providing, of course, that you make accommodations for those with one of the two valid exemptions. There is a catch, though, which may involve some extra cost for you.

As an employer, if an unvaccinated employee needs the vaccine to work at your business, you have to cover all the associated expenses since that’s now a job requirement. That would mean covering the time driving to and from the vaccination site. That would also include that you need to pay for the time spent on weekly testing. As you can imagine, if you made the accommodation of weekly testing in place of the vaccine a part of your policy, that could add up pretty quickly.

You should also consider this; once in place, you need to enforce your mandate equally and it could cost you some employees.

What should I do if the governor of my state is talking about passing an “anti-vaccine” mandate, and a “pro-vaccine” mandate gets put in place later at a federal level?

Even though, as a manager of people, learning that big changes are coming to your business is enough to send even the calmest person spiraling, the best thing to do for now is just ignore the announcement until the law is written and the legal challenges play out. Politicians have a habit of making sweeping, ambitious announcements long before the legal experts who will be drafting the actual laws even get a chance to weigh in. That usually means lots of overpromising and under-delivering. Whether it’s in a newspaper, on a blog, or at a press conference, anything said before the “letter of the law” can be examined is anyone’s guess.

Once the law is published, if you still have questions (which, let’s face it, you probably will since these mandates are often unaccompanied by situational guidance), then just make sure you don’t fly blind. Consult an attorney or … This text opens a new tab to contact CEDR…reach out to HR experts if it’s unclear what to do in specific instances, but, until then, there’s no point in guessing.

If I fire an employee because they won’t follow a mandate, can’t they turn around and sue me?

Unfortunately, the reality is anyone in America can sue pretty much anyone for any reason. It’s all a question of calculating risk. Just to put your mind at ease, as the owner of a business, there is not much risk involved in complying with the law, but substantial risk if you choose not to. If you are in full compliance, providing that you apply all policies equally to all employees and make reasonable accommodations for those with valid exemptions, any lawsuit will be directed at the entity responsible for putting those mandates in place (the state) and not your practice. If you are truly concerned, please consult your local attorney who is an expert in vaccination mandates as well as an experienced HR expert.

Although vaccine mandates are nothing new, having to comply with multiple vaccine mandates that sometimes contradict each other is something new to employers. The regulatory landscape of the workplace has changed dramatically, especially in the last couple of years, and one thing we can be certain of after over 15 years in the HR business, is that it will change once again. In the meantime, the best course of action for those who own and manage a practice and want to protect that business is to stay in compliance with laws that are already in place where you live, which is exactly what we advise … This text opens a new tab to become a CEDR member…our CEDR members to do, and that’s what we advise the AADOM tribe to do as well.