Does the mention of Biden’s 100+ employee vax mandate cue the sound of the 30-second Jeopardy! timer in your brain? That’s understandable. For many restaurateurs, waiting on news of the Occupational Safety and Health Administration (OSHA) federal vaccine mandate has been a game of hurry up and wait.
But on December 17, finally, there was a breakthrough. The vaccinate-or-test mandate that would require 84 million U.S. workers to get vaccinated against Covid 19 or risk losing their jobs is back, now that the Sixth Circuit Court of Appeals has lifted a stay on the rule.
Originally slated to take effect on January 4, the federal mandate had been suspended after dozens of lawsuits from around the country. Opponents argued that OSHA did not have legal authority to issue a rule to “a society-wide health concern,” according to NPR. That opposition only increased on November 5 with the release of OSHA’s emergency temporary standard (ETS), a 500-page guide that spells out how to comply with the new rule. Within a day, lawsuits nationwide were filed to challenge the mandate resulting in it being temporarily blocked. To complicate matters further, on December 8 the Senate voted to overturn large business vaccine and testing requirements.
Finally, the Sixth Circuit ruled that the petitioner's assertions were "entirely speculative” and lifted the stay on the rule. In short, the jabs are a must-have.
So what does this mean for restaurant owners? The wait is over, but there could be a rocky road ahead. Within hours of the announcement, dozens of business groups and religious organizations had asked the Supreme Court for a new emergency stay — precisely where many legal experts have predicted the case would end up.
The mandate will proceed pending further litigation, but it doesn’t help anyone’s nerves one bit that all of this uncertainty arrives just as the omicron variant is ramping up.
Out of this back and forth, restaurant operators effectively got a deadline extension. The Labor Department said OSHA won’t cite you for noncompliance with the testing requirement before February 9, so long as you’re “exercising reasonable, good faith efforts to come into compliance,” per NPR’s reporting. But that doesn’t mean large businesses can relax entirely, even if you’re convinced this will end up at the Supreme Court.
“My advice remains the same,” says labor and employment attorney Melissa Spence of Butler Snow Law Firm. And that advice is, get in compliance.
You can get started by giving the massive OSHA ETS a read. Or, even wiser, you can contact a labor and employment attorney for further guidance. The people who can give restaurant owners the best advice are those following this legal battle closely. They can offer an informed pathway forward to fit your restaurant rather than you guessing about how to act given the recent ruling.
One of the big questions facing employers is who has to be in compliance with this rule. Many restaurants have part-time people on staff. So, do they count?
“When it comes to part-time employees, yes, part-time employees are counted to reach the 100 employee threshold and they also the ETS would apply to them in terms of the vaccination policy or mandatory Covid-19 testing,” says Spence. “The only employees it would not apply to are employees who work from home exclusively and do not report to a workplace such that coworkers or customers are present. Or employees who work exclusively outdoors. These employees don't have to be subjected to the mandatory vaccine and Covid-19 testing.” Such at-home or all-outdoors folks are, however, counted toward a company's 100+ employee total.
Some restaurant owners might think, great, I have staff who only serve outdoors. Not so fast. If those workers have to head inside to the kitchen or operate in any other way inside the restaurant, no dice. The ETS rules still apply.
You might be wondering, are the rules different for contractors? They sure are. While this might be a rare concern for restaurants, Spence says contractors do not count toward the employee threshold.
Due to the stay delay, OSHA has given employers an additional month to get in compliance with the rule. OSHA won’t issue any citations for ETS noncompliance before January 10, Spence says, and won’t cite anyone for noncompliance with the testing requirements before February 9, so long as an employer is making those reasonable, good faith efforts to get into compliance. The deadlines are firm, in other words, but they effectively ramp up.
Tracking vaccination records — like any medical records — is touchy business for employers. But Spence says there’s a bit more leeway than usual, given the global health crisis. The bottom line is that employers have a right and a duty to inquire about vaccination status, and have many options for record-keeping.
Per rules that the Equal Employment Opportunity Commission issued around Covid-19, employers are allowed to know their employees’ vaccination status. The ETS requires that employers find out that status and get proof of vaccination. That can be a card, other medical records, copies of records from a pharmacy or public health system, or other official documents that show the basics about the vaccine: type, date, and name of the site that administered it. If none of those are available, Spence says, you can get a signed, dated attestation from the employee.
Preparing employees to make this information available is something restaurants can start working on now. The Americans with Disabilities Act (ADA) requires that you treat vaccination records as confidential. You’ve got to create a file separate from personnel files to keep those records, because if the personnel file is ever subpoenaed, employers can’t turn over the medical information, Spence says.
Some of the biggest concerns pertaining to the mandate have to do with how to handle employee exemptions on the basis of religious beliefs or medical issues. This is perhaps the trickiest part of this rule. If you have employees who claim those exemptions, it’s a good time to check in with a lawyer.
“When we're talking about an exemption request,” Spence says, “this is likely just in a circumstance when the employer is implementing a mandatory vaccination policy — meaning there likely is no accommodation for testing on a weekly basis. You don't get a choice. Either you get vaccinated or you might lose your job.”
The applicable federal laws here are Title VII and the ADA. Title VII protects employees from discrimination and harassment on the basis of race, color, national origin, gender, pregnancy, and religion. ADA protects employees from discrimination and harassment on the basis of a disability.
The disability exemption and the sincerely-held religious belief exemption are the two most common exemptions, and EEOC guidance recognizes them. An employee may also claim an exemption due to pregnancy.
For medical exemptions, Spence says, a typical plan of action under the ADA has the employer and employee discuss the disability or disability-related need. The goal is to find a reasonable accommodation that allows the employee to be able to perform their job.
Religious exemption requests are different, and are coming in fast during Covid. Spence suggests using the EEOC’s Religious Accommodation Request Form as a template. And treading with utmost sensitivity.
“When it comes to a sincerely held religious belief, the main concern is that it has to be sincerely held,” Spence says. “But we’re seeing a lot of gray area as to what is considered a religious belief and what is not considered a religious belief.”
When you have doubts about what is, in fact, a sincerely held belief, it’s probably time to get an employment attorney on the phone.
Given the Sixth Circuit Court’s decision to lift the stay, large restaurant owners need to seriously start planning to be within compliance by early February, regardless of whether legal challenges send the vaccine mandate to the Supreme Court.
The best way to do that is to act now. Start compiling employee vaccination proof, encourage employees to get vaccinated, and make your staff aware of the fact that Biden's vaccinate-or-test rule for 84 million workers is back. Then get in touch with a labor and employment law firm to help you meet the February compliance deadline.