Vaccine Mandates
New Mandates
Just yesterday, the Biden administration announced that the Occupational Safety and Health Administration (OSHA) will be issuing a new emergency rule for private sector employers. The new rule will require all businesses with 100 or more employees to make sure their workers are either vaccinated or tested once a week.
Federal workers will not have the option of weekly testing – any federal worker who doesn’t qualify for a religious or medical exemption must be vaccinated.
FDA Approval
While most legal authorities believed that vaccine mandates were legal even when all of the COVID-19 vaccinations were approved through Emergency Use Authorizations (EUAs), the FDA has now fully approved the Pfizer vaccine for use in those 16 and older.
Note that while you may read otherwise on social media, the FDA has specifically stated that the approved Comirnaty vaccine and the unbranded Pfizer-BioNTech vaccine “have the same formulation and can be used interchangeably….” The FDA also announced that it “approves Comirnaty (COVID-19 Vaccine, mRNA), which was previously known as Pfizer-BioNTech COVID-19 Vaccine, for the prevention of COVID-19 disease in individuals 16 years of age and older.”
OSHA Guidelines
OSHA recently revised its guidelines to suggest that “employers consider adopting policies that require workers to get vaccinated” against COVID-19. In addition, OSHA says that employers should “consider working with local public health authorities to provide vaccinations in the workplace for unvaccinated workers.”
Unemployment Eligibility
Both the Oregon Employment Department and the Washington Employment Security Department have indicated that those applying for unemployment assistance may be denied if the reason they’re unemployed is failure to be vaccinated for COVID-19, unless they qualify for a medical or religious exemption.
Different states may handle this issue differently, but in general, an employee fired for failure to comply with employer health-and-safety policies is not eligible for unemployment benefits, because that behavior is considered to be insubordination or misconduct.
Oregon’s CROWN Act
Effective January 1, 2022, employers and public schools in Oregon will be banned from discriminating based on “physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type” and braids, “regardless of whether the braids are created with extensions or styled with adornments, locs and twists.” Several other states, including Washington, have passed similar laws.
Employees with Disabilities
The US Court of Appeals for the Eight Circuit recently held that an employee could be fired for failure to satisfactorily complete a performance improvement plan, despite the fact that he had a disability. The employee’s manager had confirmed that the plan did not conflict with the work restrictions required due to his disability.
Please feel free to contact us if you have any questions about the above issues or any other aspect of employment law.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm. The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Kylie Haulk on Unsplash
