Q&A From CFMA's Webinar "Recent OSHA & DOL COVID-19 Vaccine Requirements Explained"

The following are the questions that were answered during CFMA’s webinar, “Recent OSHA & DOL COVID-19 Vaccine Requirements Explained,” held on October 6, 2021. The answers were provided by Heidi Nunn-Gilman, an attorney with Gammage & Burnham and colleague of presenter Julie Pace, an attorney with the same law firm. 


Don’t you think that the easiest way to accommodate religious exemptions to vaccination would be to require weekly testing? This way, no one is asking employees to put anything in their bodies besides a cotton swab.

It is likely that the easiest accommodation for religious exemptions is the weekly testing. Given that this is an option in President Biden’s plan, many commentators view this as what the administration supports as a reasonable accommodation.


If someone has an ADA or religious reason not to get the vaccine, what kind of proof do they need to supply?

Employers have discretion in the proof to require for exemptions. Under the ADA, a company can, but is not required to, ask for documentation from a health care provider that the employee has a disability that prevents them from obtaining vaccination. For the religious exemption, it is more personal and may be specific to the individual. Companies should not ask for a letter from the employee’s church or pastor, because the pastor may support the vaccine, but the employee’s personal belief does not allow vaccination. You can request a written statement explaining their belief. There may be more guidance issued on the proof that the OSHA may require, but right now it is within the employer’s discretion.


If we require every employee to be vaccinated and they have an adverse reaction, can we be held liable?

Many people have a similar question. It is not likely that employers would be liable for adverse reaction because the employer is requiring within the law. Allowing the employer to be liable would discourage vaccine mandates, and the government wants to support vaccinations.


We have a GC that is requiring our employees to identify their fully vaccinated status by stickers either on their badge or hard hat after the GC verifies their status by proof of vaccination cards. Do we need a consent form from our employees to allow this? One is a hospital job.

It would be advisable to obtain employee’s written consent to this designation. We don’t believe that the GC should be following this system. But if you have the employee’s voluntary consent, it helps to protect the company.


Can you clarify which contracts the vaccine requirements apply to? Is it effective for pre-existing federal contracts?

The requirements apply only to existing federal contracts if they are extended or renewed. It applies to covered contracts entered into this month and moving forward.


With natural immunity appearing to be more sufficient than vaccination, is there any discussion at the federal level of allowing proof of a prior positive COVID-19 test and/or antibody test to count in place of vaccination?

Currently it does not appear that the rules address natural immunity or allowing an antibody test to replace vaccination or weekly testing. That could change as more information becomes available, but it is not currently an option.


What is the definition of fully vaccinated? One shot, two shots, or two shots plus booster?

Fully vaccinated means two weeks after receiving the second dose of a two-dose vaccine or two weeks after receiving the single-dose Johnson and Johnson vaccine. Currently boosters are not required.


If your subcontracts are under $250,000, are they are exempt from the federal mandate?

Yes, the current guidance exempts both contracts and subcontracts that are less than the simplified acquisition threshold, which is currently $250,000.


When is vaccine/testing requirement effective for employers with more than 100 employees? 

The requirement will become effective after the publication of the OSHA Emergency Temporary Standards (ETS). The ETS should have the specific effective date identified.


Is it legal for an employer to make it obvious which employees are vaccinated and which are not? For example, an employer gives green lanyards only to employees who have been vaccinated and require them to wear the lanyard at the office, but non-vaccinated aren’t allowed to have a lanyard. 

It is likely unlawful to require employees to wear a lanyard or designation that they are vaccinated or not vaccinated, as vaccination status is considered confidential medical information. Because there are different requirements for wearing a face covering, etc. for vaccinated vs unvaccinated individuals, it is likely that it will be apparent who is or is not vaccinated, but the employer should not share this information.


Is natural immunity (e.g., employee had COVID-19 and recovered) acceptable instead of vaccination?

At this time, natural immunity is not being accepted instead of vaccination. Guidelines issued by the Safer Federal Workplace Workforce on Monday specifically state that for federal contractors and employees the antibodies or prior COVID-19 test, and natural immunity is not an exception. 


Which Executive Order (EO) deals with private employers, because I’m not finding one? EO 14043 deals only with Federal Employees.

The EO applies to federal contractors. The OSHA Emergency Temporary Standards (ETS), which will be forthcoming, will apply to private employers.


For employee count, I understand related companies must count together, but do we count every W-2 issued, or is there a minimum number of hours worked in a month before they count?

There should be further clarification in the Emergency Temporary Standards (ETS), so we do not know for sure right now. Currently, it is believed that employers should count all employees individually, whether they are full time, part time, or working on a temporary basis. Independent contractors and leased employees (where the client employer is not the employer of record) likely are not counted. Further joint-employment stipulations may be addressed in the ETS. If the company’s number of employees fluctuates above and below 100, the ETS may be drafted to apply if the total has reached 100 at any time during the year. The ETS should provide specific details on this when released.


I have heard the theory advanced that it is a violation of HIPAA to ask an employee if they have been vaccinated. Is that correct?

We will go through the confidentiality requirements relating to employee’s vaccination status. It is not a violation for you to ask the employee, but when you receive the information from the employee, the ADA and HIPAA limit the information that the company can share with third parties.


If under 100 employees but contract with federal government, can our employees submit medical and religious exemptions as well? Just test weekly?

The federal contractor vaccination requirements are also still subject to the medical and religious exemptions. It is likely that the accommodation would require weekly testing.


Do we have to provide the option for weekly testing?

Companies, even prior to the Path Out of the Pandemic, are permitted to mandate vaccination, and therefore companies are not required to offer the option for weekly testing. If a company mandates vaccination and does not provide the option for weekly testing, keep in mind that reasonable accommodations must be made for religious or medical reasons.


Just confirming what I heard the presenter say: we should expect another 2-3 weeks (six weeks total from the initial announcement) until OSHA issues the standards?

We were in a meeting with OSHA about two weeks ago and they said it would be another 3-4 weeks. No guarantees but that was the timeline that was given to us.


Currently, if an employee tests positive for COVID-19, are we required to pay them for time off?

There is currently no federal requirement for paid leave for COVID-19 absences. Many states have paid leave laws that would cover absences related to COVID-19 so keep in mind the state laws. But the Federal tax credit for leave under the Families First Coronavirus Response Act, which has been voluntary since January 2021, expired on September 30, 2021. Also recall that absences related to COVID-19 may be covered under the Family and Medical Leave Act (FMLA) if it meets the definition of “serious health condition” — Section 101(11) of FMLA defines serious health condition as “an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.”


How does temp labor on the jobsites play into employee counts for the 100+ employee cutoff? We have three companies, and each is owned by the same group of individuals. There are fewer than 100 employees in each company. However, if they are combined, the total employee count exceeds 100. Are we required to require vaccinations under these rules?

Whether the “joint employer” rules will apply to combine multiple entities with common ownership will apply to determine size has not been specified, but it is likely that multiple entities would be combined. But it is not yet clear.


If the union requires the vaccine and this group of employees puts us over the 100 employees, do we still have to mandate our non-union employees.

Generally union members are still considered employees of the company — you give them W-2s, correct? Therefore, even if the union has a separate requirement for its members, if your company is more than 100, including employees who are union members, you would likely need to — independent of the union — comply with the OSHA Emergency Temporary Standards (ETS).


I have Davis-Bacon Act (DBA) employers and subcontractors. Could they be subject tothe vaccine mandate — regardless of the number of employees? Any word on this? I am especially interested in the impact if you only do DBA jobs periodically.

We will have some more information on the contractor guidelines in the presentation, but coverage depends on the value of the contract rather than the size of the employers. So federal contractors (and their subcontractors) could be subject to a vaccine mandate even if they have fewer than 100 employees. The mandate would apply only if the company has a contract that contains the mandate and would not apply to current contracts unless they are modified or extended.

About the Authors

Julie A. Pace

Julie A. Pace is an Employment OSHA Attorney at Gammage & Burnham, which is located in Phoenix, AZ. Her practice handles employment law, handbooks, drug and alcohol policies, I-9 and E-Verify compliance, OSHA, and independent contractor and alleged misclassification issues with the DES and other government agencies.

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Heidi Nunn-Gilman

Heidi Nunn-Gilman is an Attorney at Gammage & Burnham, which is located in Phoenix, AZ

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