Employee Vaccine Mandates: A Legal Q&A

The Getting Hybrid Work Right call series has become a well-attended and wide-ranging discussion for HR leaders on all aspects of hybrid work. This week's call began with a review of the latest news on vaccine mandates and the latest survey results from i4cp. Then i4cp CEO Kevin Oakes facilitated a conversation with special guest Aaron Goldstein, Partner at Dorsey & Whitney LLP, who shared his insights from a legal perspective on vaccine mandates and other current issues challenging HR and business leaders today. Highlights from the discussion include:

• A key first step for organizations: what is your goal? Is it to get as many employees vaccinated as possible? Or to retain talent and have as little disruption as possible? Being clear and consistent on answering that will help guide answers to more specific questions and issues.
• Requests for religious accommodations are a very active area of law and the courts currently. Many companies are reluctant to be the test case for this issue. Companies are finding they need to ask for evidence of a sincerely held religious belief, and that is not something they have had to do very often before.
• It is uncertain whether the OSHA ruling will apply to fully remote workers or not. Past OSHA precedent could play a role, especially around the court cases that could arise.
• For organizations that are federal contractors (or subcontractors), the already existing executive order applies and does not allow for frequent testing as an alternative to requiring vaccination. A task force on the EO is at times muddying the waters around what level of contracts this applies to ($250,000+ or more broadly $10,000+) or when the contracts were created (requirements vs. suggested).
• Some of Goldstein's clients have used a multi-step approach that started with incentives and information, but grew later to requirements backed by disciplinary action including ultimately termination for non-compliance. Companies that have planned ahead and eased into this are seeing the best results (in terms of vaccination rates increasing).
• Who should be responsible for approving / rejecting / requesting more information on religious exemptions? Goldstein said not individual managers. It should be someone from the HR department, those with the most experience with these kinds of issues.
• Medical exemptions, with evidence from healthcare professionals, in general are going much more smoothly than religious exemptions.
• Goldstein noted that it is entirely possible we will be facing many of these issues again in the future around the vaccine boosters, as vaccine efficacy is waning over time.