Professional Services

Verifying
Sincerity

A human resources
perspective on vaccine
mandates

By J. Maija Doggett

Verifying Sincerity

A human resources perspective on vaccine mandates
By J. Maija Doggett
Y

ou can say I am a card-carrying, dyed-in-the-wool, devoted human resources professional. I got my bachelor’s degree in business management, with an emphasis in human resource management, from UAA in 1998. I passed the Human Resource Certification Institute’s Professional in Human Resources Exam and, two years later after completing the required work experience, I had earned the privilege of officially calling myself a PHR.

Early in my HR training I was taught in no uncertain terms that religious and medical discussions do not belong in the workplace. It was ingrained in me! At every company I have worked for, I’ve coached managers on the virtues of steering clear of those topics—and the risks of NOT avoiding them. I’ve handled complaints from employees about colleagues who engage in the prohibited discussions. Essentially, I’ve been the bouncer keeping those inappropriate religious and medical discussions out of the workplace.

But now I’m leading discussions on those very topics with employees who are not going to get vaccinated.

These discussions are not new. Vaccine mandates are not the first time anyone has requested a religious exemption from a company policy or an ADA (Americans with Disabilities Act) accommodation for a medical condition in the workplace. Some employers probably have more experience than others, but most employers have at one time or another fielded a request for religious exemption from working on Saturday or an ADA request for accommodation to have a service animal at work. I’ve certainly been there.

But COVID-19 vaccine exemption requests come with the threat of job loss for my coworkers.

Deputized by Government

Whether I agree with the vaccine mandate or not, as an HR professional for my employer I’m an agent of the government tasked with forcing people to take the COVID-19 vaccine or else spill their guts to me about their personal religious beliefs or medical conditions. And if the gut-spilling is not successful (meaning they aren’t approved for exemption), I’ll need to terminate their employment.
As an employer representative, sometimes I feel absolutely clueless about what I’m supposed to do to help my company be compliant.
This is also not new. HR has been deputized by government for decades. Businesses are charged with enforcing immigration law, for example, and they delegate that enforcement task to HR. HR also ensures businesses don’t violate labor laws, wage and hour laws, or anti-discrimination laws. HR is the watchdog that ensures businesses don’t fire pregnant people for being pregnant. HR forces employers to allow employees to take benefit-protected leaves of absence when they need to and, when they’re well enough, have a job to come back to. HR also ensures employees only take the amount of job and benefit protected leave they’re entitled to. We make sure our employers give all workers a fair chance to be considered for employment and that all of our workers are paid what they’re supposed to be, how they’re supposed to be, and when they’re supposed to be. We even police American citizens to ensure they have health insurance as required by law.

All the laws imposed on businesses by the government are vague, conflicting, and at times unreasonable. These laws often have fits and starts. But in my twenty-four-plus year HR career, none have had the conflicts or fits and starts to the degree that these vaccine mandates have. As an employer representative, sometimes I feel absolutely clueless about what I’m supposed to do to help my company be compliant.

Some Clues

Here’s what I do know.

On September 9, 2021, President Biden issued an executive order, EO 14042, that requires federal contractors to verify that all employees are fully vaccinated, as defined by the Centers for Disease Control and Prevention. At this writing the most recent deadline for compliance was January 18, 2022.

If you are a federal contractor, all of your employees must be vaccinated except in limited circumstances where an employee is legally entitled to an accommodation.

My exemption request process puts this card-carrying, dyed-in-the-wool HR professional in the position of probing my coworkers for information about their deepest personal religious beliefs and details about their medical conditions which they say prevent them from taking the COVID-19 vaccine.
On November 5, 2021 the Occupational Safety and Health Administration issued an Emergency Temporary Standard, known as the OSHA ETS, which applies to employers with 100 or more employees and mandates COVID-19 vaccination for each employee, except those

“(i) For whom a vaccine is medically contraindicated;

(ii) For whom medical necessity requires a delay in vaccination; or

(iii) Who are legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”

Both rules require businesses to carry out the federal government’s mission to get all US residents vaccinated against the SARS-CoV-2 virus, except those who are entitled to a religious or medical accommodation.

In addition, the OSHA ETS requires paid leave to obtain COVID-19 vaccination as well as weekly testing for employees who are not vaccinated. Records of weekly testing must comply with certain rules pertaining to type of test (think molecular versus antigen), confidentiality, and availability upon government request. HR professionals know this means we need to develop a method for tracking tests for applicable employees (i.e. those with exemptions) in a way that we can protect the data according to the privacy standards of the federal Health Insurance Portability and Accountability Act, more commonly known as HIPAA. Employers subject to the OSHA ETS needed to comply with part of it by December 5, 2021 and the rest of it by January 4, 2022, but a week later the US Supreme Court granted a stay. The OSHA ETS was withdrawn as an enforceable standard but not as a proposed rule.

Between Two Orders or None
Whether a business falls under EO 14042, the OSHA ETS, or both determines what actions to take to comply.

The firm I work for employs more than 100 employees, spread among more than half a dozen states, and we are a federal contractor. Some of the states where we have employees have made it illegal for an employer to require vaccination. Others have joined in legal actions to block EO 14042 and the OSHA ETS.

Based on the legal advice we’ve received:

  • Federal law trumps state or local law, so if federal law requires us to ensure our employees are vaccinated, that we must do regardless of a state law prohibiting the practice.
  • We do not have to comply with both EO 14042 and the OSHA ETS. Federal contractors, regardless of employee headcount, must comply with the EO.
  • Once the EO was enjoined from taking effect, my firm was required to comply with the OSHA ETS.
  • Once there was a stay on the OSHA ETS, we were advised to cool our jets but be ready to comply with whichever law comes out on top.

At this writing, my firm’s “limbo” regarding which of these mandates we’ll need to comply with has ended. The US Supreme Court stayed the OSHA ETS on January 13, 2022, which means no one needs to comply with it. Now we are waiting to find out if we’ll ever need to comply with EO 14042.

Thus far in the life cycle of these two vaccine mandates, my firm has hit these milestones:

  • Decided to comply with EO 14042 in order to retain our status as a federal contractor, remain in business, and provide livelihoods for our employees and their families.
  • Wrote a policy to comply with the mandate.
  • Took the plunge and communicated this new policy to all our employees.
  • Created two crucial processes to aid our compliance:
    • A process for verifying and tracking employee vaccine status. This was based on a similar process I’d created earlier in the year on a smaller scale to comply with mask mandates in Oregon and Washington. The mask mandates applied to non-vaccinated individuals, and therefore my company was required to verify vaccination status for employees in those states before we could allow them to go maskless in our offices.
    • A process for managing employee requests for religious or medical exemptions to the vaccine mandate. This process needed to be compliant with applicable laws, consistently applied, trackable, and reportable.
  • Began verifying vaccine statuses of employees who volunteered to be verified.
  • Began adjudicating exemption requests from employees who want to keep their jobs but will not become vaccinated.

While we wait to see whether EO 14042 remains in force, employees are continuing to verify their vaccine status and request exemptions. Smart moves in case we suddenly become subject to the EO. Thus, I continue to process requests.

[EDITOR’S NOTE: On January 21, 2022 a US District Judge in Texas extended the nationwide injunction, finding that plaintiffs were likely to prevail on constitutional grounds.]

How Sincere Is Sincere?
The process I developed for managing exemption requests, with huge help from legal counsel, was no small feat. It involved configurations I made to my human capital management system in order to keep track of requests and their progress, as well as to provide regular reporting to senior leadership.

We retained legal counsel to review every request and help with communications back to employees and their managers. My company’s attorney and I have become rather close as a result of this project. (Hi Mike!)

I devised a system of intake and triage: when a new request comes in, I assign it to either myself or one of my HR partners, complete with a script to use in our conversations with employees and managers about these requests.

My exemption request process puts this card-carrying, dyed-in-the-wool HR professional in the position of probing my coworkers for information about their deepest personal religious beliefs and details about their medical conditions which they say prevent them from taking the COVID-19 vaccine. All this via Microsoft Teams because our employees are spread out among numerous locations or working remotely.

It’s a rather impersonal way to conduct a very personal conversation: “Oops—I missed that. You froze… last thing I heard was ‘The Holy Spirit compels me to…’ Compels you to what?? Oh wait, you’re still frozen. Teams me back when you can talk more about God.”

J. Maija Doggett, SPHR, SHRM-SCP, CEES, is People Department Operations Manager for an engineering firm with hundreds of employees and operations in several states.
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