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Even though the U.S. Supreme Court has blocked a federal vaccine mandate for private employers, businesses still have to take measures to protect workers from coronavirus-related illness or death.
That’s what employment lawyers told the Arkansas State Chamber of Commerce on Wednesday during a virtual meeting on how businesses should proceed after the high court’s decision.
The lawyers from Friday Eldredge & Clark LLP of Little Rock said that while the vaccine mandate is in limbo (the Supreme Court decision didn’t kill the mandate, it just stopped it from being enforced while a lower court case plays out), employers can set their own policy. But they must be mindful of existing state and federal regulations.
They pointed to an Occupational Health and Safety Administration rule that requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” And OSHA has made it clear that it recognizes COVID-19 as such a hazard, said labor and employment attorney Michael Moore.
“It’s my belief that if an employer is not following CDC guidelines and an outbreak or death occurs, OSHA is liable to come down pretty hard on them,” Moore said.
Moore recommended that employers document how they’re following CDC guidelines to help protect their business. He said it helps to know who’s vaccinated, and therefore who needs to isolate or quarantine if they’re infected. Simply asking about a worker’s vaccination status, Moore said, wouldn’t violate state or federal law.
Neither would making vaccination a condition of a job offer, in Moore’s opinion. A new state law requires businesses with a vaccine mandate to allow employees to opt-out if they’re tested weekly or can prove they have antibodies. It also requires businesses to make reasonable accommodations for employees who receive vaccine exemptions because of religion or disability. But, as Moore noted, the law says nothing about job applicants.
Moore’s colleague, labor and employment lawyer Mark Cameron, said screening applicants by vaccination status would be similar to screening through a drug test. He reminded businesses that the law prohibits employers from considering religion or disability in the hiring process.
State law bans businesses from firing someone over their vaccination status, but Moore and Cameron said that businesses could still reassign a worker, require them to wear more personal protective equipment, or even place them on leave.
Mandate for health workers
The Supreme Court allowed a vaccine mandate for most health workers in the U.S. to proceed, and providers that receive funding from the Centers for Medicare & Medicaid should be prepared to comply.
Amie Wilcox, a Friday firm associate whose practice focuses on health care, said surveys can begin Feb. 13 in Arkansas to determine compliance with the mandate.
The mandate provides exemptions based on religion and disability, but it does not allow workers to opt-out if they submit to weekly testing or can prove they have antibodies. It requires facilities to document employee vaccination status and exemptions, and detail the reasons behind the exemptions.
For those with approved exemptions, suggested accommodations include but aren’t limited to reassignment away from patient care, weekly testing and CDC-recommended measures including physical distancing and mask-wearing. Wilcox said weekly testing is quickly becoming the industry standard.
“Of course, one size does not fit all,” she said. “Your accommodation for someone providing patient care may be different than someone who works in a business office.”
Wilcox said the vaccination requirement covers a “pretty vast” range of workers beyond health professionals, including on-site contractors, such as construction crews.
“Covered staff are essentially anyone who has contact with a patient or who may have contact with a patient in common areas,” she said.
The mandate primarily applies to hospitals, ambulatory surgery centers, long-term care facilities, hospice agencies and home health providers. Wilcox said independent physicians generally aren’t subject to the mandate, but there are exceptions for physicians who have an outpatient relationship with a covered hospital or receive CMS funding for certain services.