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COVID vaccine mandate news: New NYC rules, federal update

CNET logo CNET 1 day ago Katie Teague
text: Your employer can legally terminate your employment if you refuse the vaccine or regular COVID-19 testing. Sarah Tew/CNET © Provided by CNET Your employer can legally terminate your employment if you refuse the vaccine or regular COVID-19 testing. Sarah Tew/CNET

Just because the Occupational Safety and Health Administration suspended the enforcement of the COVID-19 vaccine mandate doesn't mean your employer can't require you to get vaccinated. In fact, New York City on Monday issued a vaccine mandate for all private sector employees that will begin Dec. 27. It's the first in the US to do so. It's possible more cities and states could follow suit as the omicron variant continues to surface across the country.

The federal mandate would have required people working for businesses employing 100 or more people to get fully vaccinated or tested weekly by Jan. 4, 2022. It was blocked by a federal appeals court in early November, which ordered OSHA to not enforce the mandate and to wait until a further court order. The requirement is designed to curb the surge in coronavirus cases, hospitalizations and deaths caused by the virus, including the delta variant and the new omicron variant

© Sarah Tew/CNET

The mandate is part of President Joe Biden's new employer vaccination mandate issued in September, and would cover 84 million workers. Unvaccinated people are 10 times more likely than vaccinated people to be hospitalized and 11 times more likely to die from the coronavirus, according to the Centers for Disease Control and Prevention. Breakthrough COVID-19 cases, which occur when vaccinated people contract the disease, are far less deadly than cases in unvaccinated patients, but can still produce long-term effects, including "long COVID."

We'll tell you about the suspension of the nationwide COVID-19 vaccine mandate for companies. Also, here's the latest on booster shots for Moderna, Pfizer and Johnson & Johnson. Plus, here's how you can soon get free COVID-19 test kits.

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What's going on with the OSHA suspension of the vaccine mandate?

The decision on Nov. 6 by a three-judge panel from the US Court of Appeals for the Fifth Circuit in Louisiana halted the Biden administration's vaccine and testing mandate for large companies. The ban stops OSHA from implementing the mandate requirements, so OSHA has suspended its enforcement of the Emergency Temporary Standard, pending the outcome of future litigation. The challenge claims OSHA exceeds its authority with the mandate.

The Biden administration responded to the ban, asking private businesses to continue with the vaccine mandate. Around half the states are challenging the mandate in court, NPR reported, including a separate lawsuit filed by 11 states as reported by The New York Times.

What's the NYC vaccine mandate?

New York Mayor Bill de Blasio on Dec. 6 announced a vaccine mandate for private sector workers that will begin Dec. 27. The mandate will apply to around 184,000 businesses. The proof of full vaccination requirement will also apply to customers age 12 and older entering indoor dining restaurants, fitness facilities, and entertainment and performance venues.

The federal government requires companies to mandate the vaccine

Even before Biden's COVID-19 vaccine mandate, US employers could require employees to be vaccinated during pandemics under federal law.

The Biden administration issued new requirements for all companies with 100 or more employees to ensure they are either fully vaccinated or produce negative test results at least once a week. The rule could give employers the option of making unvaccinated employees pay for the weekly testing, Bloomberg Law reported

"We're going to protect vaccinated workers from unvaccinated co-workers," Biden said in September after he announced the mandate. 

Because it's federally mandated, the Department of Labor will require employers to give workers paid time off to get vaccinated. This includes time to get the shot and sick time to recover from any side effects.

Americans with Disabilities Act excuses some people from mandatory vaccination

The Americans with Disabilities Act requires employers to provide "reasonable accommodations" to workers with medical conditions that would make them unable to get a vaccine. The US Equal Employment Opportunity Commission recognizes long COVID as a disability under the ADA

According to the US Department of Health and Human Services, these civil rights protections apply -- even during emergencies -- and can't be waived.

Still, the CDC found that some long COVID patients say their symptoms improved after receiving the vaccination. The agency says more studies are needed to determine how the vaccine affects post-COVID conditions.

Does the Civil Rights Act apply to people with religious beliefs opposing vaccines?

At this time, it's unclear whether people will be able to decline the COVID vaccine because of their religious beliefs, and it could be on a case-by-case basis. Even within the clergy, some disagreement appears to have surfaced. For instance, Pope Francis is encouraging Catholics to get vaccinated, saying the Vatican approves of the various vaccines. Yet Archbishop for the Military Services Timothy Broglio said Catholic troops can refuse the COVID-19 vaccine (PDF) if receiving it would violate their conscience.

New York has been back and forth on religious vaccine exemptions. Health care workers filed a lawsuit against the mandate, saying it violates their First Amendment rights and the Civil Rights Act. A judge ruled that those health care workers can seek religious exemption requests from a statewide COVID-19 vaccine mandate.

New York Gov. Kathy Hochul, a Democrat, said she'd fight the judge's decision, citing the public health crisis that COVID poses to New York state residents.

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Who opposes the vaccine requirement?

The push to require vaccinations has prompted a backlash. A group of Senate Republicans sent a letter to Senate Majority Leader Chuck Schumer in November, saying they'd oppose all efforts to implement and enforce the COVID-19 vaccine. A federal judge also blocked the vaccine requirement for health care workers, which was scheduled to start on Dec. 6.

What happens if you object to receiving a vaccine when your employer requires it?

Just because you have a valid medical disability or theological objection to receiving a coronavirus vaccine doesn't mean your employer has to let you continue working under the same conditions you've been used to. Companies are required to make "reasonable accommodations" if an employee objects to receiving a vaccine for valid reasons. Such accommodations could include allowing the employee to work remotely or take a leave of absence. The employee could also show a negative COVID-19 test once a week, per the president's mandate.

If you don't have a medical condition per the ADA or a religious reason for refusing the COVID-19 vaccine, your employer has the right to terminate your employment. Note that you likely won't be able to claim unemployment benefits if that happens because your employer's reasoning for firing you would be "for cause" that's tied to complying with company policy.

Some companies are also considering imposing fines on unvaccinated workers refusing to get the shot. This could include raising health care costs, withholding raises and restricting access to workplace amenities. For instance, the NBA says it won't pay unvaccinated players who miss games.

A 1905 Supreme Court case allows employers to require vaccines

There are precedents for large-scale vaccination requirements in US law. In 1901, a deadly smallpox outbreak in New England prompted local governments to order mandatory vaccinations for everyone in the area. Some residents, however, objected, and one took it all the way to the Supreme Court. The Supreme Court decided in Jacobson v. Massachusetts that the government may impose "reasonable regulations," such as a vaccine requirement during pandemics, for the purpose of protecting the "safety of the general public."

The court case forms the basis of guidance issued by the Equal Employment Opportunity Commission, which makes it clear that employers may make similar demands of their workers.

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How likely is your employer to require a COVID-19 vaccine?

If your company employs 100 or more workers, they would be legally required to mandate the COVID-19 vaccine or subject you to regular testing by Jan. 4, assuming the OSHA suspension is lifted. Smaller companies can also require workers to get vaccinated, although it's not considered a federal mandate. Here's more about who's required to get vaccinated against the coronavirus.

For more information, here's the latest on who's eligible for the Moderna COVID-19 booster shot and the Pfizer booster vaccine right now.

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