December 8, 2021
Navigating through the legal issues surrounding federal vaccine mandates, the OSHA Emergency Temporary Standard, CMS mandates, state policies, and your own company policies can be challenging.
So in the meantime, what action can you as an employer take to protect your employees and stay operational?
In this webinar, Engage by Cell CEO Dave Asheim interviews two of the country’s top vaccine authorities plus a current client who has implemented our Vaccine Tracker mobile web application.
Tracey E. Diamond is a partner at Troutman Pepper, a former director of human resources, and a member of the firm’s Coronavirus (COVID-19) Taskforce, advising clients on workplace issues related to the global pandemic.
Patrick W. Dennison is a partner at Fisher Phillips, and a member of the firm’s COVID-19 Taskforce. Patrick advises employers on workplace vaccination strategies, confidentiality and privacy concerns, and has spoken extensively on legal issues surrounding vaccine mandates.
Lori Gallivan is the Executive Director of Curriculum, Instruction & Accountability at Winthrop Public Schools and recently implemented Engage by Cell's Vaccine Tracker to manage employees' and students' vaccine information.
Here are the highlights of their discussion:
Status of Vaccine Mandates
“First, there is a nationwide stay by the Fifth Circuit Court of Appeals of the OSHA Emergency Temporary Standard (ETS). Then it went to the Sixth Circuit Court of Appeals. The Sixth Circuit issued a briefing schedule. OSHA has a chance to respond by December 10th and we’ll have a full briefing schedule by that date. However, the OSHA ETS isn't the only mandate that is really making headlines at this point. You have the CMS mandate which covers health care workers. There have been some pretty significant decisions staying that, and yesterday, there was a decision staying the federal contractor mandate nationwide. Regardless, since the end of September, there have been a lot of companies that have made some significant changes and implemented a lot of policies within the workplace. Basically, many things are up in the air right now.” -Patrick Dennison
Potential Supreme Court Showdown.
“The bottom line here is that all of the Biden administration pushes to implement these vaccine mandates are really tied up in the courts at the moment. Of course, no one has a crystal ball, but I do think that we're going to see them all heading to the Supreme Court for some kind of showdown probably in the first or second quarter of next year. “ -Tracey Diamond
Statues Prohibiting Mandates
“In some states, there are statutes prohibiting employers from instituting a mandate. So you need to make sure you are informed on what your state law is.” -Tracey Diamond
Legal Issues Surrounding Mandates
“The legal issues that are before the courts are not so much about the disease themselves as they are about whether or not the administrative agency that's enforcing the mandate is exceeding its authority and putting a mandate in place. So with regard to the OSHA mandate, the issue before the court is does OSHA really have the power under the rubric of maintaining a safe workplace to put a vaccine mandate in place? Because it's really putting the onus on the employer to enforce whether someone's getting the vaccine or not.” -Tracey Diamond
Ethical or Moral Obligation for Employers?
"When it comes down to it, this all comes back to workplace safety. Whether an employer mandates the vaccine, or requires weekly testing, they're looking to provide a safe workplace and also remain operational. They're trying to avoid shutdowns or employees taking a lot of time off because because they're sick. From a business standpoint, that's where most of my clients are coming from.“ -Patrick Dennison
Vaccine Status and HIPAA Laws
“HIPAA only applies to what are called ‘covered entities.’ Most employers, unless they deal with personal medical information, don't fall under that definition. Many people are concerned that an employer asking for vaccination status violates HIPAA. It really doesn't have anything to do with HIPAA.” -Patrick Dennison
Don’t Ask Your Employees This Question
“Asking someone whether they've been vaccinated in and of itself has been held to be an okay question to ask. What's not okay to ask is the underlying reasons why someone has chosen not to get vaccinated.” -Tracey Diamond
Firing Unvaccinated Employees
“Beyond making sure that a company is providing a reasonable accommodation to employees that are looking for an exemption based on a disability or religious reasons, in states where there is no prohibition against mandating the vaccine for employees not requesting exemptions, the company is free to hold employees to their policies, which may include a vaccine mandate, or they could discipline and terminate employees for failing to abide by those policies.”
Do Employers Have to Pay for Testing?
“OSHA has made it clear that employers do not necessarily have to pay for the testing, unless there's some other state or local rule that would require it. There's a lot of gray area there, and we've been working through those issues with clients on a state by state basis.” -Tracey Diamond
Using Technology to Track Vaccinations
“We needed an organized, meaningful way to collect this data. Also, I'm a one-woman department in regards to this issue. Trying to collect vaccination data on my own was not going to be an effective use of time or energy for anyone.”
Quick Response to Data Collection
“On Sunday, we did another round of reach out and we had close to 800 students, just on Sunday, upload their documentation. “ -Lori Gallivan
Data Privacy Concerns
“There are some people who are worried about where the information is going. The only three people who have access to this database in the district are the superintendent, myself, and the lead nurse. Once the nurse leader verifies the cards, the only information shared with our building administrators is a list of staff or student names that are verified— no personal information, no dates, nothing else.” -Lori Gallivan
Experience with the Engage by Cell Team
“Engage by Cell has done a wonderful job of making this what we need. They've helped us create reports and transition to a 2.0 version of the Vaccine Tracker in order to answer all the questions I needed. At the same time, they created a way for us to check off a verified section of each record.” -Lori Gallivan
Communication with Families
“To request vaccination information, we emailed families and sent a link to the Vaccine Tracker site which they can access from both the desktop and their phones. We made the request in different languages to make sure we were targeting all of our students’ demographics. We had principals include a message in their weekly transmissions to families. We also talked about it in school committee meetings. Families want to know what's going on. If you're not sharing information and being upfront with them, they tend to think you're trying to garner this information for some sinister use.” -Lori Gallivan
How Attorneys Can Help
“We're spending a lot of time helping clients draft policies that will be compliant with the OSHA mandate. If the mandate goes into effect, we're helping clients parse through the requests for exemptions for disability and religious reasons. I help with questions about who will pay for testing, what type of vaccine is appropriate, and what type of test is appropriate.” -Tracey Diamond
Vaccine Tracker: Easy and User Friendly
“I've been able to work with the Engage by Cell team to create what we need. The data is so great that we're getting and the lift for parents and teachers has been minimal. They go on their phone, they follow what we ask them to put in, they take a picture, they get a thank you, and they're done. That's the part that will be a saving grace to a lot of people who need to implement something. It is very easy, very user friendly.” -Lori Gallivan
Make Compliance Easy
“If you're going to put a policy place, whether it's COVID related or outside of that, people should be able to easily comply with it. Otherwise, you're going to get significant pushback.” -Patrick Dennison