Lauren Kulpa

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Near the end of 2021, the Occupational Health and Safety Administration (OSHA) issued the Emergency Temporary Standard (the ETS), which required employers with 100 or more employees to put in place a mandatory vaccination policy or require weekly COVID-19 testing and mask wearing by unvaccinated or partially vaccinated employees. On November 5, 2021, the United States Court of Appeals for the Fifth Circuit stayed enforcement and application of the vaccine mandate; this stay was dissolved by the Sixth Circuit Court of Appeals on December 17, 2021. See the discussion of these rulings here and here. Thereafter, the United States Supreme Court agreed to review the issue.

In an updated guidance released on December 27, 2021, the Centers for Disease Control and Prevention (CDC) reduced the recommended isolation and quarantine period for the general population. The term “isolation” refers to the recommended behavior after a confirmed COVID-19 infection, while “quarantine” is the term that applies to the period following a person’s exposure to the virus or close contact with someone who has COVID-19. According to CDC Director Dr. Rochelle Walensky, the Omicron variant is spreading quickly, and the “CDC’s updated recommendations for isolation and quarantine balance what we know about the spread of the virus and the protection provided by vaccination and booster doses.”

Coronavirus Covid-19 Protection and Vaccine. Doctor drawing up solution from vaccine bottle and filling syringe injection for patient vaccination in medical clinic, Coronavirus in background

Since the Food and Drug Administration (FDA) approved use of three COVID-19 vaccines under emergency use authorizations in April 2021, many public and private employers have announced and/or implemented mandatory vaccination policies. In addition, on September 9, 2021, President Biden signed an executive order requiring that certain federal contractors mandate vaccinations for their workers and directed OSHA to implement a rule that would require employers with 100 or more employees to mandate vaccination and/or COVID-19 testing. For more information, see our previous blog post.

Employers implementing mandatory vaccination policies (either by the company’s decision or pursuant to government requirements) have been left with questions on how to properly address employee requests for accommodations to such policies due to religious beliefs, practices, and observances.

On October 11, 2021, Texas Governor Greg Abbott issued an executive order expanding upon a recently passed law that generally prohibited Texas businesses from requiring proof of vaccination from customers. The new executive order applies to both consumers and employees and states, in part: “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” The executive order does not define “personal conscience” or explain what “prior recovery from COVID-19” means in the context of objecting to a COVID-19 vaccine. The order also sets up a maximum fine of $1,000 for failure to comply with the order (although the order is unclear regarding how the fine would be calculated).

Today, President Biden announced the nation’s COVID-19 Action Plan, which is a six-prong, comprehensive national strategy designed to save lives, keep schools open and safe, and protect the nation’s economy while avoiding additional lockdowns and damage. The six prongs are:

  • Vaccinating the unvaccinated;
  • Further protecting the vaccinated;
  • Keeping schools safely open;
  • Increasing testing & requiring masking;
  • Protecting the nation’s economic recovery; and
  • Improving care for those with COVID-19.

On August 12, 2021, the City of San Francisco revised its Health Order C19-07y (the “Order”) to mandate certain San Francisco businesses and operations verify proof of vaccination of its staff and patrons in response to the surge of cases caused by the COVID-19 delta variant.

Who does this apply to?

The revised Order requires: (1) businesses and events that serve food or drink indoors (e.g., dining establishments, bars, clubs, theaters, and entertainment venues); (2) gyms, recreation facilities, yoga studios, and other fitness establishments; and (3) indoor events with 1,000+ person attendance, to verify patrons 12 years of age and older are fully vaccinated prior to entering the business’ or event’s indoor facilities starting August 20, 2021, ascertain the vaccination status of staff by August 20, 2021, and ensure staff who routinely work onsite are fully vaccinated before entering or working in any indoor portion of the facility by October 13, 2021, with limited exceptions and subject to applicable federal, state, or local laws requiring accommodations.

On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring certain entities to develop health and safety policies and to require masks indoors.

In relevant part to employers, all commercial entities in Dallas County “providing goods or services directly to the public must develop a health and safety policy.” The policy must require, at a minimum, universal indoor masking for all employees and visitors to the commercial entity’s business premises or other facilities. Additionally, the policy may include other mitigating measures to control and reduce the transmission of COVID-19, such as temperature checks or health screenings. The policy must be posted in a “conspicuous location” to provide notice to employees and visitors. Commercial entities are required to implement the policy within three (3) calendar days of the effective date of the order. Failure to do so may result in a $1,000 fine per violation.

Post-Acute COVID-19 Syndrome, colloquially referred to as long COVID-19, occurs when an individual who had COVID-19 continues to experience ongoing symptoms for months afterward. Individuals with long COVID-19 might have difficulty working in the same way they did before and may be entitled to workplace accommodations so they can do their job. Even if these employees do not think of themselves as having a disability, they may meet the Americans with Disabilities Act definition.

Under the ADA, an employee is entitled to accommodations if they meet the definition of an individual with a disability and are qualified for the job with the reasonable accommodation. An individual with a disability is a person who has a physical or mental impairment that substantially limits major life activities, has a record of such an impairment, or is regarded as having such an impairment. Whether a particular condition is a disability as defined by the ADA requires a case-by-case determination. However, employers are free to provide accommodations even if someone doesn’t meet the definition of disability – and they must provide accommodations if they do meet it, absent undue hardship.

According to a legal opinion posted online on July 26, 2021, the U.S. Department of Justice officially took the position that the Food, Drug, and Cosmetic Act—which authorizes an “emergency use authorization” for a vaccine—does not prohibit entities, including employers, from requiring a vaccine even if authorized for emergency use only. Read Full Update

On July 27, 2021, the U.S. Centers for Disease Control (“CDC”) updated its mask guidance in response to the Delta variant of COVID-19.  The CDC now recommends fully vaccinated individuals to wear a mask indoors in public if in an area of substantial or high transmission.  For individuals who are not fully vaccinated or…