With little known about how the Biden administration’s vaccine mandate will play out for non-federal employers, business and community leaders on Thursday attended a webinar focusing on vaccine policies.
Sponsored by Great River Health; Fort Madison, Keokuk and Mount Pleasant chambers of commerce; the Lee County Economic Development Group and Greater Burlington Partnership the webinar, “COVID-19 Vaccine Do’s and Don’ts: What do you need to know as a business leader?” featured Penelope Phillips, a Minnesota employment attorney with more than 30 years of experience who has worked with many hospitals on crafting influenza vaccine policies.
Before Phillips began, however, Great River Health Chief Medical Officer Michael McCoy gave a brief update on the status of COVID-19 in the area.
“Within the last week, we’ve had at least seven deaths here at the hospital that I’m aware of. We’ve lost a 49-, a 39- and a 28-year-old all this week to a mostly preventable tragedy,” McCoy said. “Information is coming fast, it’s dynamic, and for some reason, something scientific and biological has become much more than that.”
McCoy’s remarks came as employers with more than 100 employees and Medicare and Medicaid-certified facilities await further guidance on vaccine mandates.
Jim Kammerer, vice president of support services for Great River Health, previously told The Hawk Eye the health system still was awaiting guidance from the long-term care mandate enacted by President Joe Biden earlier this year.
“He said that all longterm care employees will be required to have COVID vaccine or the facility would lose their Medicare/Medicaid reimbursement,” Kammerer said. “And that has not come to fruition. They actually backed off of that. They weren’t going to withhold payment.”
Under Biden’s vaccine mandate that was announced in September, however, all employees of Medicare and Medicaid-certified facilities will be required to be vaccinated, as will federal employees and staff of federal contractors. As of Sept. 22, about 65% of Great River Health’s about 2,500 employees had been vaccinated.
Kammerer acknowledged the possibility that mandating vaccines for healthcare workers will spur some to quit, thus compounding the existing shortage of health workers, but he is hopeful that the broadness of Biden’s mandate will result in “less of an exodus of employees” as mandates will extend to other sectors.
More:Who is covered by Biden’s new vaccine mandates and when do they go into effect? Here’s what we know.
Lack of guidance leaves many questions unanswered
While federal workers and federal contractor employees have until Dec. 8 to have in place mandates, a deadline has not yet been set for healthcare facilities and employers of more than 100, and the Occupational Safety and Health Administration and Centers for Medicare & Medicaid Services have yet to issue guidance.
“We don’t have the rules yet,” Phillips said. “We can only guess. … This is part of the frustration because we’re just not getting real-time information.”
With the looming mandates, some employers already have begun to put in place policies mandating that employees be vaccinated.
Phillips explained there are soft mandates and hard mandates.
Soft mandates offer more flexibility but may come at increased cost and risk
Soft mandates are not a condition of employment, though they will require that employers ask their employees to get vaccinated while having in place an alternative testing program for those who refuse vaccination.
“We understand from what the Biden administration announced that (soft mandates) are going to apply to employers with more than 100 employees,” Phillips said. “That’s all we know. We don’t have any rules, we don’t have any regulations. We have some educated guesses, but that’s what we know.”
Testing programs, however, could be costly.
It is yet unclear whether unvaccinated employees will be able to provide proof of testing done at another location, such as through public health, or whether employers will have to provide the testing themselves.
“Under the federal employee mandate, the employer pays for it. I’m going to guess that’s what’s going to be required for anyone whose subject to a mandated policy,” Phillips said, cautioning employers against passing that cost along to their employees. “Iowa, like Minnesota, has a tricky little law that makes it less clear as well whether or not you can shift the cost to the employee, so I would be careful about charging the employee for that test.”
Denise Johnson, vice president of human resources for Winegard Co., which has about 500 employees on site, a large portion of which are employed through temp agencies such as Team Staffing Solutions, has been looking into cost-effective, reliable and quick testing options.
“I think the success of the mandate is dependent on cost-effective, reliable and quick testing, because if it’s not reliable, it’s meaningless. If it’s not quick, it’s not practical to have your workforce out,” Johnson told The Hawk Eye in September. “If it’s not cost-effective, I don’t want to go broke testing employees.”
Johnson expressed concern that passing along a portion of the testing cost to employees could put employers at risk of worsening labor shortages.
As of the third week of September, Winegard was in need of about 40 people to fill positions and has taken steps to meet an already strained workforce, including not filling a product line and taking work to the Mount Pleasant Correctional Facility.
“We’re begging for people,” she said. “I’m a little bit concerned about passing the cost of the tests onto employees, and the reason I say that is the labor market is really tight right now. It’s hard finding employees, so I want to make sure I don’t jeopardize that either.”
Johnson said that while Winegard does not favor vaccine mandates for employees, the company does believe it is important to provide a safe workplace. Employees are able to leave to get vaccinated with no loss of pay. Des Moines County Public Health also hosted a vaccine clinic there in March and again in April, when about 40% of employees got vaccinated. Johnson plans to organize a booster clinic on site in the near future.
More:Des Moines County Public Health will offer vaccine clinic for those eligible for additional doses
Johnson said she is does not know how many employees were vaccinated prior to the clinic or how many have been vaccinated since, but she is working out a method to keep track of who is and isn’t vaccinated in the likely event it will be needed.
Hard mandates as a condition of employment
Hard mandates would require vaccination as a condition of employment unless the employee is granted religious or medical exemption.
“A hard mandate is what many employers are doing,” Phillips said, pointing to American Airlines as an example. “Basically, a mandatory vaccination policy puts the employer in a position of doing something with the employee if they don’t get vaccinated and they don’t otherwise have an exemption. What that do something is, there’s a lot of discretion.”
Phillips said that at the federal level, employees working 100% remotely are exempt from the mandate and recommended that employers offer the same exemption to their fully remote workers.
She also stressed the importance of policies including exemptions.
Medical exemptions for contraindicative conditions
Under federal and state law, vaccination policies must allow for medical and religious exemptions.
“When communicating with your employees, you need to make sure that medical and religious exemption requests will be honored, so you have a statement in your policy that that’s what you’re going to do,” Phillips said.
Medical exemptions apply when an employee has a medical condition that would put them at risk of harm should they get the vaccine, such as being allergic to the vaccine’s ingredients. The presence of this medical condition can be proven with a doctor’s note or other means as the employer crafting the policy decides.
Who decides whether the condition meets the requirements of a medical exemption, however, can be tricky.
“The biggest challenge when employers have been required to offer a medical exemption is who decides, who reviews the documentation and who decides whether or not the employee is in fact eligible for an exemption,” Phillips said. “Larger organizations have a medical exemption review committee that reviews the medical exemption requests and decides whether or not the employees submitted sufficient information to be eligible for a request.”
Medical exemptions can be denied if the condition listed has no known contraindication to the vaccine.
Religious exemptions are more complicated.
What constitutes a religious exemption?
The U.S. Supreme Court defines religion as “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to the place held by God in the lives of other persons.”
“The definition of religion under federal law is incredibly broad,” Phillips said. “It is not limited to a particular, well-organized religion.”
Phillips recalled a previous case she had wherein an employee who was an atheist made a religious discrimination claim and cited another incident where a vegan challenged a mandatory influenza vaccine claim.
“It has to be belief in something higher, a spiritual belief system, not moral, not ethical, not political definitely, but it is not clearly defined,” she said.
Further complicating the matter is a conflict that exists between the Equal Opportunity Commission and the courts.
“The courts always win, but if you have some employee file a charge of discrimination with the EOC, they may take a different, broader view of religion than the federal courts do,” Phillips said. “The EOC has said all you have to do to be exempt from a mandatory flu vaccination is offer a religious belief like, ‘my body is a temple,’ or ‘I follow scripture X, Y, Z, which says that I can’t allow anything in my body to change the course of God’s will. Therefore, I don’t want to have a COVID vaccination’.”
Religious exemptions also may extend to COVID testing, as indicated by the OSHA Emergency Temporary Standards for Health Care Employers, which contains an exemption to testing based on religious beliefs.
“Somebody could be exempt from testing, but as an employer, if you had an employee who was both exempt from getting the vaccine and then refused to test, I think you’d have a pretty good undo hardship/safety threat argument depending on what the employee’s job was,” Phillips said.
Religious exemptions are difficult to dispute, and information on how to fill out religious exemption request forms are available far and wide online. Phillips said refusing seemingly canned responses to form questions is ill-advised as it is hard to prove otherwise.
“Unless the employee is clearly engaging in behavior that’s completely the opposite of whatever they’re saying in their statement, I think it’s really hard to say no if somebody offers a religious belief and offers a justification for not getting the vaccine,” she said. “What does that mean? That means there are a lot of people who are going to get exemptions. Is it a risk of harm to you and your business? Possibly. What’s the downside of saying no? It’s getting sued by the EOC or the employee saying you denied them what is, on its face, apparently a sincerely held spiritual belief.”
Questions can be included on exemption forms to better weed out false religious claims, such as whether they have received vaccinations before and asking for an explanation on how their current religious beliefs or practices prohibit them from receiving the COVID-19 vaccine.
