You can’t turn on the news or look to social media without hearing someone’s opinion about the COVID-19 vaccine and vaccine mandates. Just as the science around COVID-19 has evolved, so have the views around vaccine mandates. Let’s see where private employers stand in Oklahoma on October 1, 2021. (Caveats to date and location because different rules already apply in different locations and certainly the rules will change over time.)

1. Private employers can impose vaccine mandates for their own employees.

If you have employees in Oklahoma, you can require them to get the COVID-19 vaccine in order to be employed or to remain employed. But you must also comply with other applicable laws. So, if you are presented with a request for an accommodation under the Americans with Disabilities Act (ADA), from an individual with a disability, or under Title VII of the Civil Rights Act (Title VII), based upon a person’s good faith religious belief, then you must comply with those laws. This will require you to undertake an accommodation review, which involves an interactive process with the employee. An employer is not required to provide the specific accommodation requested, nor is there an absolute requirement to provide any accommodation at all (depending on the circumstances). An employer is required to provide a reasonable accommodation if one can be provided that does not cause the employer an undue hardship – as those terms are defined under the applicable laws.

2. Federal Contractors subject to Executive Order 14042 must have covered employees fully vaccinated no later than December 8, 2021.

That one sentence has a lot to unpack. On September 24, guidance was issued to help explain the Executive Order. Any employer doing business with the federal government should review both the Executive Order and this guidance to determine whether it might be required to comply. Note that “Covered Contractors” include a prime contractor or subcontractor at any tier who is a party to a covered contract. A covered contract is broadly defined to include a “contract or contract-like instrument.”

It is clear from the guidance that the goal is to cover as many employees as may reasonably be reached. The vaccination mandate covers not only employees working directly on the contract but to all employees in workplaces which have employees working on a covered contract. It also applies to remote workers or teleworkers.

To comply, Covered Contractors must have actual proof of vaccination. Self-attestations which have been acceptable for other laws will not be acceptable here.

You still must comply with other laws. Notably, the EEOC continues to maintain that proof of vaccination is a medical record which must be confidentially maintained and segregated as a medical record, so be mindful of that as you gather this information. Covered Contractors must also comply with the ADA and Title VII in terms of accommodations.

As an aside, the guidelines also establish additional COVID standards for Covered Contractors such as masking, physical distancing, and the appointment of a coordinator.

3. We expect private employers with 100 or more employees will be required to mandate vaccines or have employees routinely tested.

Here we only think we know things. The President gave a press conference and then directed OSHA to issue Emergency Temporary Standards – what we might call “the rules.” We don’t yet have the rules. Here is what we think will happen, likely sometime in October.

Private businesses that employ 100 or more employees in the United States will be subject to the rules. Even if you have never thought about OSHA before, the rules will still apply if you employ at least 100 employees. In Oklahoma, OSHA’s rules will go into effect on the date set forth by OSHA – best guess, 30-90 days after the rules are announced. (In states which have a state OSHA, other procedures will kick in which may alter everything discussed in this section.)

We expect the rules will state that all covered employers must require their employees to be fully vaccinated by a certain date and, if the employee refuses, they must submit to periodic COVID-19 testing. Some of the questions include: will this apply to remote workers, how often must the employee test, what tests will be acceptable, who pays for the testing, etc.

We anticipate OSHA will require weekly testing and that the employer will be required to cover the cost of the testing. There is already guidance that, if an employer requires a COVID-19 test for work, the employer must pay a non-exempt employee for the time necessary to take the test. (Exempt employees are not paid hourly or overtime, so it is immaterial to the compensation of an exempt employee.)

Because of the costs involved, employers will struggle with the question of whether they will simply mandate the vaccine, which is a simpler and cheaper alternative but which may negatively impact employee retention, or whether they will offer the testing option, which is not only costly but will be administratively taxing. This raises more questions such as whether, under the rules, an employer might mandate the vaccine, reserving the testing option only as a “reasonable accommodation” under the ADA or Title VII analysis. As you can see, there are many, many variables to consider.

Of course, this is all speculation until such time as OSHA issues the rules.

For those of you who are planning to do nothing in hopes there will be challenges to OSHA’s rules and you can escape compliance, we advise against that. There will undoubtedly be challenges. However, you cannot be assured that any challenge will result in a court stopping OSHA from enforcing the rules. News reports vary but there are reports of fines in the tens of thousands of dollars for non-compliance.

Our advice. Don’t wait. Make a plan, even if you have to alter that plan as we learn more.

By Kristen L. Brightmire, kbrigtmire@dsda.com