This is the fourth installment of our Senior Executive Lookahead blog series.
We are counting down the top five issues that should be on the radar of every human resource and business leader in 2022. Today we explore Issue Four: Employers will continue navigating COVID-19 with competing government mandates.
For more than two years, governments at every level have been grappling with how to mitigate the impact of COVID-19. Most notably, the Biden administration issued four workplace vaccination and testing policies. All four were met with lawsuits, deepening concern and confusion in workplaces across the country.
In January, the Supreme Court issued opinions on the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) for large employers and the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health care providers. The court held that opponents of the OSHA ETS were “likely to prevail” in their lawsuit and reinstated the nationwide stay originally placed by the Fifth Circuit Court of Appeals. OSHA later officially withdrew the ETS.
The CMS mandate was upheld by the Supreme Court. Injunctions placed by various courts across the country were lifted, and the mandate was allowed to take effect under different compliance deadlines. The administration’s vaccine mandates for federal contractors and federal employees are still blocked by nationwide injunctions.
Meanwhile, state governments wrote their own laws and regulations to combat COVID-19 in the workplace. Legislators in California, Delaware, Kentucky, New York, Washington, D.C. and elsewhere passed laws mandating vaccination or testing for state employees, health care providers and child care workers. In contrast, states like Alabama, Florida and Texas have passed laws limiting the ability of employers to impose vaccine mandates. Further complicating the issue is that several municipalities have passed their own vaccination policies.
With the patchwork of laws and regulations, employers are left to decipher which policies work for them. Seventy-five percent of employers surveyed by SHRM late last year said they would not require vaccines or testing if the OSHA ETS was blocked by the courts. Challenges to vaccination mandates imposed by cities, states and private companies have largely been upheld. Companies have the autonomy to institute vaccination mandates and fire employees who do not comply, though there are some important caveats. However, this does not lessen the burden of deciding which policies are best for their organizations—if any.
Employee response to COVID-19 policies has been mixed. Some employees threatened to quit if their company instituted a vaccination policy. New York City has seen the largest workforce reduction related to COVID-19 vaccination requirements. There, more than 1,400 municipal workers were terminated after being placed on unpaid leave for their refusal to comply with the city’s vaccine requirement.
Conversely, we have seen protests and upheaval among employees who believe their employer is not properly protecting the workforce from COVID-19. Examples include nurses from 11 states who were striking (or poised to strike) over working conditions and teachers in Chicago striking for three days to protest what they deemed a lack of COVID-19 safety protocols. As new variants of the virus emerge, similar upheaval could occur in other jurisdictions or industries.
Private companies that pursue vaccination and testing policies are subject to local, state and federal laws. While local and state laws vary, policies must comply with federal laws like the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. These laws provide a legal basis for employees to seek reasonable accommodations based on medical or religious reasons. Employers are allotted significant discretion in determining whether a request is reasonable, and they are allowed to ask employees probing questions about the medical or religious reasons cited in accommodation requests. An accommodation is considered reasonable if it does not pose an “undue hardship” on the employer.
Another potential area of dispute involves workers who have already contracted COVID-19 and are now seeking work accommodations due to debilitating symptoms that have not subsided. Multiple studies place the range of patients who experience prolonged symptoms at around 30 percent. Some symptoms reported qualify as a disability under the ADA. As a result, employees may seek reasonable accommodations to continue to work. Employers that deny accommodation requests outright and without proper consideration face serious penalties.
COVID-19 is here to stay, and OSHA is expected to introduce additional rules and regulations concerning the containment of the virus in the workplace. In the meantime, employers must be prepared to address future variants, workplace protections and supporting a hybrid workforce. With local, state and federal officials moving in different directions, employers must determine the best ways to safeguard employees’ lives and livelihoods.
As an advocate for the HR profession, you have a unique and valuable perspective on the changing world of work and how advocacy can make an impact with policymakers and in your workplace. Are you a member of SHRM’s Advocacy Team? Join today or text ATEAM to 52886.
Emily M. Dickens, J.D., serves as SHRM's Corporate Secretary, Chief of Staff and Head of Government Affairs. She is the executive responsible for coordinating staff to implement the CEO's vision, the liaison for the SHRM Board and subsidiary boards, and executive with oversight of external partnerships, policy and government affairs.
Dickens is an attorney with significant and progressive experience in government, higher education and the non-profit sector. She has served as a member of the leadership team at the University of North Carolina system, the Association of Governing Boards of Colleges and Universities and the Thurgood Marshall College Fund. Her prior roles include general counsel, chief relationship officer, senior vice president, vice president for public policy and assistant vice president for federal relations. Dickens has also worked at Duke University and Fayetteville State University in administrative and external affairs roles.
Emily is actively engaged in board service. She is currently a member of Strategic Education, Inc. HIRE Advisory Board; the Board of National Foundation for Women Legislators (NFWL); the Advisory Council of the Congressional Hispanic Caucus Institute (CHCI); the Advisory Board of the College of Arts and Sciences at North Carolina Central University; and chairs the International HBCU Task Force for Alpha Kappa Alpha Sorority, Incorporated.
She is a graduate of North Carolina Central University and North Carolina Central University School of Law.
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