Mandating the COVID-19 Vaccination: Update for Kentucky and Ohio Employers

A year ago the country was several months into a global COVID-19 pandemic, but the availability of a vaccine and the potential for vaccine mandates still seemed far away.  Fast forward six months, and as of mid-April 2021 nearly every U.S. worker age 16 and older had the ability to receive at least one of three different SARS-CoV-2 vaccines approved under the Emergency Use Authorization (EUA) provisions of the federal Food Drug and Cosmetic Act (“FDCA”).  Shortly after vaccines became widely available, as employers were understandably anxious to reopen and get back to a new normal, we were frequently asked, “Can I require my employees to get vaccinated?”

What Does the Federal Government Say?

The U.S. Equal Employment Opportunity Commission (EEOC) weighed in on this question in a May 2021 guidance, and answered yes, although employers might be required to provide exemptions to some employees on medical or religious grounds.   In July the U.S. Department of Justice Office of Legal Counsel issued an opinion that vaccine mandates were permitted under the FDCA, even though the available vaccines didn’t yet have full FDA approval.   And at least two federal courts have sided with employers on the subject of the constitutionality of vaccine mandates.  In August the U.S. Court of Appeals for the Seventh Circuit (which includes neighboring states Indiana and Illinois) refused to issue an injunction against Indiana University’s vaccine mandate. Relying on a United States Supreme Court ruling from over a century ago that upheld a government vaccine mandate, the justices expressed their opinion that “there can’t be a constitutional problem with vaccination against SARS-CoV-2.”  A federal judge in Texas reached the same conclusion, refusing to block a hospital’s implementation of a mandatory vaccination policy for its workers.  

What Do Ohio and Kentucky Say about employer vaccine mandates?

Governor DeWine signed a law in July prohibiting public schools and universities in Ohio from requiring that their employees or students receive any vaccine that did not have full FDA approval.  It is scheduled to take effect in October, however the FDA’s full approval of the Pfizer vaccine for individuals age 16 and older on August 23, 2021, has already rendered it moot for nearly all public school and university employees. Other bills to place limits on mandatory vaccination have been introduced in the Ohio state legislature, but have not yet passed.  The Kentucky Legislature also held a special session this month to address COVID-19 challenges, however no laws were passed relating to employer vaccine mandates.  

Vaccinating the Unvaccinated: A Federal Mandate

Then for many employers this summer the question stopped being about what is permitted, and  became “Must I require my employees to get vaccinated?” as the federal government took a series of actions to mandate vaccination for certain workers, including nursing home workers, and federal employees. And earlier this month, President Biden announced sweeping vaccination mandates, as part of a six-pronged strategy to combat the COVID-19 pandemic.  “Vaccinating the Unvaccinated” is the first prong of this plan, and includes the following requirements:  

• all employers with 100 or more employees must ensure that their employees are vaccinated, or tested weekly;
• all federal workers and employees of federal government contractors (which includes thousands of private businesses who do business with the federal government) must be vaccinated;
• all health care workers at health care facilities that receive Medicare and Medicaid reimbursement must be vaccinated;  

The large employer mandate will be put in place through a new federal OSHA rule. While many details of the rule are not yet known, including how to count employees for purposes of the 100 employee threshold, it was announced that the penalty for noncompliance will be $14,000 per violation.  Ohio is part of the federal OSHA scheme, and will be covered by this rule.  However because Kentucky is a state plan jurisdiction, it will be required to adopt a rule under the Kentucky OSH Act that is at least as effective as the new federal rule in protecting workers and in preventing work-related injuries, illnesses and deaths -- so you can expect the Kentucky rule to follow the federal rule closely, if not identically.   Which leads to the common question now being asked by both employers who want to require vaccinations, and those who must, which is “How do I put an employee vaccination requirement in place?”

How do I put an employee vaccination requirement in place?    

For these employers, the following things need to be considered, generally in this order:  

• Are you currently covered by a federal mandate?  If so, what specific requirements must you meet, and what exemptions are you permitted to allow?  
• If you are not covered by a government mandate, is your workforce covered by a collective bargaining agreement?  If so, depending on the language in your CBA, you may have an obligation to bargain with your employees over vaccination requirements.
• And how will you manage requests for exemptions under your vaccination policy?    

ADA and Religious Exemptions

As noted earlier, the EEOC stated that employers must consider providing exceptions to individuals with a covered disability, if the disability prevents them from safely receiving the vaccination (for example, individuals with certain autoimmune disorders), and to individuals who object to receiving the vaccine on religious grounds. The Americans with Disabilities Act (ADA) provides that qualified individuals with disabilities are entitled to receive a reasonable accommodations, which can include exemptions from workplace rules, unless the employer can demonstrate that the exemption creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. For purposes of the ADA, and undue hardship is an action requiring “significant difficulty or expense."  Determining whether an accommodation is reasonable is a very fact intensive analysis, and in each case an employer will need to carefully consider the options for unvaccinated workers.  The employer may be justified, under certain circumstances, in excluding an unvaccinated worker from the workplace due to a direct threat the unvaccinated employee could pose to the health and safety of his or her coworkers, customers, patients, etc., particularly during periods of high community transmission of COVID-19. However even then the employer will need to look at whether other possible reasonable accommodations exist, such as whether the employee can be safely isolated from others in the workplace, receive regular testing and utilize other forms of effective PPE, or whether the employee could perform his or her job duties remotely, or be reassigned to a remote position. If there are no other reasonable accommodations available, then unpaid leave may be required as a last resort under the ADA.   Title VII also requires employers to reasonably accommodate sincerely held religious beliefs, practices, and observances unless an undue hardship would result. Sincerely held religious beliefs do not include social, political, economic, or philosophical beliefs or personal preferences. In addition, the Supreme Court defines an undue hardship in the religious accommodation context as anything that creates more than a minimal cost or disruption to the employer's business, a much lower standard than what is required to show undue hardship under the ADA.  For these reasons, requests for religious exemptions from vaccine requirements are likely to be unsuccessful in many employment settings.  As we expect rapid developments in this area to continue, you should consult with your labor and employment counsel when making decisions about vaccination requirements for your workplace.     Julie K. Hopkins is an experienced labor and employment advisor and problem solver. She works with diverse clients across a variety of industries to consistently provide the strategic guidance and support that enables organizations to more effectively and efficiently advance their goals while ensuring that their responsibilities to key internal and external stakeholders are met.  She can be contacted at jkhopkins@strausstroy.com or 513-629-9459.