People and Strategy

Stephanie Rawitt on Employer Vaccine Requirements

Episode Summary

Stephanie Rawitt, an attorney at Clark Hill PLC, discusses the Supreme Court ruling that stayed the OSHA’s Vaccination and Testing Emergency Standard (OSHA ETS). The ETS is on hold pending the review of the merits of the issue before the U.S. Court of Appeals for the Sixth Circuit or further action by the Biden Administration. In this interview with Tony Lee, Vice President of Content at SHRM, Rawitt examines the options leaders have to keep employees and customers safe. (length 22:46)

Episode Notes

Stephanie Rawitt, an attorney at Clark Hill PLC, discusses the Supreme Court ruling that stayed the OSHA’s Vaccination and Testing Emergency Standard (OSHA ETS). The ETS is on hold pending the review of the merits of the issue before the U.S. Court of Appeals for the Sixth Circuit or further action by the Biden Administration.

In this interview with Tony Lee, Vice President of Content at SHRM, Rawitt examines the options leaders have to keep employees and customers safe. (length 22:46)

Episode Transcription

Tony Lee:

Welcome. I'm Tony Lee, vice president of content for the Society for Human Resource Management and the SHRM Executive Network, the premier network of executives and thought leaders in the field of human resources. We advance the HR profession by engaging thought leaders and executive practitioners to create solutions and drive success for people and organizations. In today's special Executive Network Podcast we'll discuss the future of COVID-19 vaccine mandates in light of the recent Supreme Court ruling that stayed OSHA's vaccination and testing, emergency standard. Also known as the OSHA ETS. The ETS has stayed pending the review of the merits of the issue before the US court of appeals for the sixth circuit, which means that it's on hold for now until the sixth circuit court's decision or further action by the Biden administration.

Now, of course, within hours of the Supreme Court decision, President Biden appealed to states and to companies to implement vaccine mandates, many of which had already taken that step. But what about the rest? Joining me today is Stephanie Rawitt, an attorney at Clark Hill PLC in their Philadelphia office, where she partners with human resources, legal and administrative departments, as well as directly with C-suites to create, manage, and maintain the most current employment policies and procedures. Thank you for joining me, Stephanie.

Stephanie Rawitt:

Thank you for having me Tony.

Tony Lee:

Well, so in light of the Supreme Court ruling, what would you now advise employers that have held off on requiring employees to be vaccinated or tested, what should they now do?

Stephanie Rawitt:

Well, Tony, it really depends upon the private employer first of all. And I want to take a step back because as we know this ETS, had it been something that was going to move forward at this stage was only applicable to employers who had 100 or more employees, any other employers with smaller numbers of employees would not have been impacted by the ETS, although they could have been impacted by the Medicare, Medicaid standard, which we should talk about today as well, and also state or local laws as well. So looking solely at the employers that have 100 or more employees, many of them, if they had been working under the guidance of council or getting ready for the ETS may have already begun to implement policy. And they may have also begun to collect vaccine cards. So some of this really depends upon what the private employers desire is with reference to moving forward and how they want to man their workplace with the ETS on hold for now.

So in that world with the ETS on hold, if there are employers who were not very keen on this vaccine or test mandate, they do not have to comply with the vaccine or test mandate that the ETS implemented at this time, because it is indeed stayed. Again, they should look at their state and local rules to make sure that nothing is applicable to them there. But if they don't want to do the vaccine or test mandate, they don't have to at this point and they can move forward with protective measures that they either feel are appropriate and or are in compliance with their state or local areas.

Tony Lee:

Okay. So you mentioned what's called the CMS, which is the requirement that if you are a healthcare facility, none of that is true. If you are a healthcare facility, you must require vaccination or testing and actually vaccination.

Stephanie Rawitt:

Yes. It's just vaccination. That's right. Correct. And when the Supreme Court ruled that the ETS would be stayed at this time, pending a further review and further evaluation by the sixth circuit. Although we should talk about that because I think that the Supreme Court kind of showed their hand a little bit with where they would go when the case gets bounced back up to them, which I think it surely will. They also ruled on the CMS and with the CMS, they actually said, you know what? This one is not going to be stayed. We are actually going to allow this to move forward because in the world where healthcare providers take Medicare or Medicaid, there are certain governances that the government is allowed to follow through with and mandating vaccination for healthcare workers that work in facilities that do receive Medicare or Medicaid support is something that fits into the power of the government in that regard.

So in that world, healthcare facilities must have their employees vaccinated. There is no testing option like there was with the ETS. Instead, the only quote out for employees in the CMS is for an employee to make an accommodation request under either a sincerely held religious belief or to claim that they have a medical condition that precludes them from being able to get the vaccine. And then employers in that regard need to evaluate on a case by case basis, the accommodation request to determine one, is there a sincerely held religious belief or a valid, supported medical reason for this particular person not to be getting the vaccine. And then if that particular piece of the test passes, the healthcare organization then needs to look at that person's job and determine whether or not they can perform the essential functions of their job with accommodation. So that is the analysis that would take place there in the healthcare facilities that do need to move forward with vaccine requirements.

Tony Lee:

No, it makes perfect sense. And I think most healthcare facilities have thought through this and have been prepared for it. So if I'm a senior executive and running a company, trying to make decisions for my employees, I know OSHA's not going to stop now. So the question is, what do you think OSHA's going to do in response to the Supreme Court ruling and what should I do to prepare for that?

Stephanie Rawitt:

Sure. So you have to remember, first of all, that this was an emergency rule. OSHA is moving forward, trying to finalize a rule with reference to this vaccine or test mandate. And that rule is working its way through process. Right now, when there's a rule that OSHA is looking to finalize as with other government agencies as well, they need to have follow up specific process. So they need to open the rule to questioning by the public. And that's the stage that the final rule is sitting in right now. It needs to be open for a period of time. And then ultimately it will be determined if that rule is going to become a final rule. So OSHA can still move forward with that process. The ETS situation is not binding them in regard to that component. OSHA is going to fight the stay by fighting the underlying issues in the sixth circuit.

And we are probably going to see OSHA trying to move the sixth circuit as quickly as possible. And that's going to be an interesting process to follow. That doesn't end it there though, because of course, if either side is unhappy with whatever the sixth circuit ultimately does, the Supreme Court is going to have another bite at that apple with reference to the underlying decision. And I believe that what the Supreme Court stated in its opinion gives us a little show of hand as to what the Supreme Court will likely do if that rule, the ETS rule crosses its desk again.

Tony Lee:

Yeah. So it sounds like you're thinking the likelihood of any type of OSHA regulations on vaccine and testing is a long shot.

Stephanie Rawitt:

Well, I think it's a long shot with reference to the ETS. The Supreme Court in its decision where it stayed the ETS actually indicta, pretty clearly stated that they feel that OSHA did not have the power to Institute this type of a rule as an emergency rule and impact such a large amount of the American population. And that's something that would need to have been done by legislation and not by an administrative agency like OSHA. So I'm not sure about the final rule. We're going to see where that goes, but in terms of the ETS itself, I do think it's a long shot for that to be successful.

Tony Lee:

Yeah. All right. So I'm an executive and I'm managing a business in Florida or in Texas or in another state that has banned vaccine mandates. What's my, I mean, do I basically ignore this and not worry about it? I mean, where do I go from here?

Stephanie Rawitt:

I think it depends as to what you want to do as an employer. So you're in a state that's banned a vaccine mandate, obviously legally that's being challenged in those states. There are organizations that are just like challenging OSHA with what it tried to do here, there are organizations challenging whether or not a governmental body can ban a private employer from mandating a vaccine for the safety of its workers. So we're going to see that working its way through the system as well, to determine what kind of powers our governors and our state legislatures have as well. So that's one thing we're going to see happening there, but in terms of, if you're sitting in Florida and right now there is a ban on a vaccine mandate, and you as an employer have safety concerns for your employees, you can sure recommend that your employees get vaccinated.

You can have incentives to vaccinate. And we saw that at the beginning of the vaccination process where the EEOC itself came out and said, as long as you're giving do de minimus rewards, and you're not punishing people who are either medically or religiously unable to get the vaccine and treating folks there fairly and in a non-discriminatory way, you can certainly have some type of an incentive to encourage employees to get vaccinated. So there are certainly things that you can do within the confines of a no mandate protocol if you don't want to be the private employer that becomes the test case in litigation in that particular state. So that's one option.

The other option is there are still masks out there and employers can require masks in public areas or in their workspace if they choose to do so. They can set up barriers. They can mandate social distancing. They can have sick policies to make certain that folks aren't coming to work sick in this day and age, the way that people did before the pandemic. A lot of people before the pandemic would go to work sick because they didn't want to take a day off. So in that vein, if you want to one, have a policy to tell people not to come work if they're unwell, then perhaps employers need to look at and readjust their leave policies, PTO, things of that sort. And employers should be very wary of whether or not their state or localities have any type of mandatory PTO requirements in place with reference to COVID itself on an emergency basis or mandatory PTO in general, as we saw that movement happening in the past number of years across states and cities.

Tony Lee:

Yeah. I mean, I'm just going to be Frank here. It's complicated. I mean, especially depending on where you're located. States and municipalities seem to be coming up with regulations on a fairly regular basis. And a lot of the employers that we're talking to are multi-state, they have locations all over and now with remote workers, they have employees all over. How do you approach this if you want to be, I mean, let's take for example, hospitality, United Airlines is a perfect example of a company that's got employees in every single state in the country with a vaccine mandate. I mean, are they taking a big risk here? What do you think?

Stephanie Rawitt:

It is such a complicated battle. And I think that where an employer sits in multiple states and in multiple jurisdictions, first of all, you have to cater to the state or jurisdiction in which you sit. So employers do need to make sure that they're aware of the local rules in every single locality where they are. And then there are decisions to be had and employers make decisions as they have across the board in a number of ways. Some employers want to cater to the most restrictive state where they can, although you have a complication here, because some states are saying, Hey, no, you can't have a mandate at all, or you're going to have to do this on a state by state basis or a state by locality basis and stay up to speed, which is you are correct. Incredibly complicated.

Tony Lee:

So having good counsel is step one.

Stephanie Rawitt:

It is absolutely step one. It's actually amazing because we wake up right now in this world of COVID, which it's insane that we've been living in this world now for almost a full two years and every day seems to be a different standard, or a different issue, or a different rule. We saw that in the past couple of weeks with the new CDC isolation slash quarantine guidelines where they've shortened those guidelines, that's an example where everything is just moving and changing. So absolutely having an attorney in multiple states or with a pulse on what's going on in every state and locality is essential because in your world, as a business owner, you're trying to operate your business and to be able to keep track of all of this on top of that is overwhelming to impossible.

Tony Lee:

Yeah. All right. So let's talk for a minute here about the opposite situation. So we've seen Omicron certainly outside the US peak and then fade quickly. And we're now starting to see evidence of that in various cities around the United States. So what about employers that have implemented vaccine requirements that now are thinking, I'm going to roll them back. I'm having trouble keeping some employees, I'm having trouble attracting new employees who don't believe that a vaccine requirement is necessary. What risk do they run by eliminating it with perhaps employees who feel like it's protecting them?

Stephanie Rawitt:

Yeah. That again, another catch 22, isn't it. So, first of all, an employer who's thinking about rolling it back look, if you're a private employer and you're not in the medical world and you don't have a state or local rule requiring vaccines for your particular business, then that's certainly something that you can do. And something that employers are contemplating doing. Because as we know, in addition to this crazy world of COVID, we're living in this world that is being called the great resignation where employers do not have the staff that they need to be able to do the jobs that they need to do. In particular, the restaurant industry, the hospitality industries, retirement communities, clients of mine as well, are struggling to be able to operate and give the services that they are there to give because they don't have the employees to do it.

So in that vein, and if an employer is going to consider rolling back the vaccine mandate to attract a wider population of employee, they are allowed to do it. They should do it with care and with the guidance of counsel, because those folks who felt forced to get the vaccine may be embittered if they didn't want to get the vaccine to keep their job, but did. And also there are going to be issues of making sure that the folks who are vaccinated, who felt that they had security in place from a safety perspective, feel as though their employer is still looking out for their wellbeing, if they are going to roll back the mandate. So I think that it needs to be done carefully. I think it needs to be done with some transparency so that the employees who are already there, who are a part of the prior mandate regime, understand and still feel as though they are of value and being protected by their employer.

Tony Lee:

Now, have you seen any examples yet of any employers that have taken a hard mandate that requires vaccinations and turn it into a soft mandate where perhaps testing is fine, or there are other options to a full vaccination and boosters?

Stephanie Rawitt:

I have not seen that yet. I have seen more right now in the past days, since the stay of the ETS, I have seen employers who were with dread getting to roll out the vaccine or test very happily realizing that they don't have to do it and pulling back from it. So employers that were perhaps already collecting vaccine cards, but had not yet implemented the testing component, pulled back on collecting those vaccine cards, that I have seen or employers abandon their efforts to get ready, to try to figure out how to track weekly testing. Because that was one of the biggest concerns and onuses on larger private employers was one, figuring how to appropriately and in an organized way, keep track of weekly testing and two, managing weekly testing when tests have been really difficult to get your hands on. So I think there was a lot of relief for those employers who had not implemented the mandate. Any employer of mine who chose to mandate early has not softened because it's what they wanted to do.

Tony Lee:

Yeah. No, that makes perfect sense. We just have time for one other question, but I'm curious how you feel about employers that have said, I'm just going to not deal with this at all and allow my workplace to go remote. Now, obviously that doesn't apply to a lot of different types of companies, but for those that it does, is that a solution that seems to be working for them?

Stephanie Rawitt:

It's really interesting because prior to the pandemic, how many employers out there thought remote work was something that just wasn't an option because you couldn't police your employees and you were worried that they were going to sit home and eat bonbons and watch soap operas all day, instead of work. And we learned through the past two years that remote work for the right jobs and the right people is actually something that can be very positive. It actually provides the ability to bring back into the workforce people who may not have been in the workforce because of things like commuting, parenting responsibilities and inability to secure daycare, things of that sort. And it does bring back in another population in this world of the great resignation that can actually help us build our workforce back up again.

So in that vein for the right business, I think that being fully remote could be very attractive to the right employees and also be a very successful business model for the right business. I do know of some clients who are either going back to fully remote or determining that they are going to stay remote through the wave of Omicron before bringing folks back into the office to avoid having to answer the vaccine or mandate question. So I really think that that is a business by business and employee by employee decision that needs to be made. There are places where it could be a fantastic resolution and places where it's just not the right option.

Tony Lee:

Well, Stephanie, I can't thank you enough for sharing your thoughts and your expertise here. I'm sure all our listeners are really going to value the feedback they've gotten today. So thank you.

Stephanie Rawitt:

Well, thank you so much for having me and have a great afternoon.

Tony Lee:

I just want to add that for more information on vaccination mandates and other topics we've discussed today, or for further details on the SHRM Executive Network, please visit shrm.org/executive. Thank you for joining us.