The ongoing scourge of the pandemic, coupled with the widespread availability of safe and effective COVID-19 vaccines in the U.S., have left private employers grappling with a critical question: can and should they mandate that employees get vaccinated?
For some employers, requiring that their workers get vaccinated for COVID-19 seemed not to be a choice, but instead a legal obligation imposed by the federal Occupational Safety and Health Administration (“OSHA”) pursuant to its November 5, 2021, Emergency Temporary Standard on COVID-19 Vaccination and Testing (the “ETS”). 29 C.F.R. §1910.501. The ETS, now placed on hold by the U.S. Supreme Court as of January 13, 2022, requires that employers with 100 or more employees have a COVID-19 mandatory vaccination policy or, alternatively, a policy mandating that employees either get vaccinated or, in lieu of vaccination, undergo regular COVID-19 testing and wear a face covering at work. The ETS covers two-thirds of all workers in the private sector in the U.S. and allows exceptions for workers who cannot be vaccinated due to medical reasons or as a reasonable accommodation, absent undue hardship for the employer, on disability or religious grounds. It includes other provisions impacting employers such as protocols for removing COVID-positive employees from the workplace, paid time off for employees to get vaccinated and for vaccine side effects, and verification of vaccination status.
After court challenges to the ETS resulted in conflicting decisions from federal appeals courts, the ETS took effect in many jurisdictions on January 10, 2022 (with OSHA indicating it would defer enforcement until February 2022). Because Nevada is one of several states operating its own OSHA-approved workplace safety and health program (which, by law, must have standards in place at least as effective as those adopted by federal OSHA), Nevada adopted a different time frame for implementing the ETS. The Nevada Department of Business and Industry, Division of Industrial Relations, Occupational Safety & Health Administration (“Nevada OSHA”) announced on December 27, 2021, that it was not adopting the ETS until January 24, 2022. Further, Nevada OSHA indicated it would “exercise enforcement discretion for noncompliance with the ETS for a period of 30 days for any requirement of the ETS (60 days for testing requirements)” if employers were “making reasonable and good faith efforts to come into compliance with the standard.”
https://dir.nv.gov/uploadedFiles/dir.nv.gov/content/OSHA/Features/12-27-21%20(Nevada%20OSHA%20Enforcement%20Updates%20Regarding%20COVID-19).pdf.
On January 13, 2022, the Supreme Court issued a stay of the ETS, finding that OSHA had likely acted outside of its authority in adopting the sweeping vaccine and testing measures. (In another January 13th decision, the Supreme Court allowed a separate interim final rule to take effect, which was issued by the Center for Medicare and Medicaid Services and requires COVID-19 vaccination of healthcare workers at Medicare and Medicaid-certified providers and suppliers). While litigation over the ETS will continue to proceed in the lower court, given the Supreme Court’s reasoning, it is highly unlikely the ETS will be reinstated as currently drafted. A response from Nevada OSHA regarding the impact of the Supreme Court’s stay on its own state OSHA plan is likely forthcoming.
Even with the vaccine and testing ETS currently blocked, it remains true that all private employers in Nevada are generally free to mandate the COVID-19 vaccine for their workforces (unless prevented from doing so by a collective bargaining agreement or other employment contract). Unlike some states, Nevada does not have any law prohibiting employers from mandating the COVID-19 vaccine. Likewise, guidance from the federal Equal Employment Opportunity Commission (“EEOC”) and the Centers for Disease Control and Prevention (“CDC”) affirms an employer’s right to require vaccinations (with medical and religious exemptions). See EEOC website
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (website visited January 12, 2022); see also CDC website https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html (website visited January 12, 2022). For employers covered by the Americans with Disabilities Act and Title VII of the 1964 Civil Rights Act, vaccination mandates must address reasonable accommodation for employees who are unable to get vaccinated due to, respectively, a disability or sincerely held religious belief.
So, while employers can legally mandate COVID-19 vaccinations, will they? In a November 2021 survey conducted by the Society for Human Resource Management, 75 percent of responding employers said they would be unlikely to adopt a COVID-19 vaccination mandate or testing requirement if the ETS is permanently struck down. “Large Employers Hesitant About Vax Mandate,” CFO Magazine (December 14, 2021) (https://www/cfo.com/covid-19/2021/12/large-employers-hesitant -about-vax-mandate/). As the pandemic rages on, it remains to be seen what approach Nevada employers will take with respect to vaccine mandates.
About the authors
Doreen Spears Hartwell and Laura Thalacker are the founding members of Hartwell Thalacker, Ltd. Ms. Hartwell’s practice focuses on employment litigation and business litigation. Ms. Thalacker has practiced employment law and litigation in Nevada since 1994 and helps businesses comply with the complex patchwork of laws governing the employment relationship.
About this article: This article was originally published in the “Employment Law” issue of Communiqué, the official publication of the Clark County Bar Association, (Feb. 2022). See https://clarkcountybar.org/about/member-benefits/communique-2022/communique-february-2022/.
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