Details of COVID-19 vaccine workplace rules are out. What if your employer won't comply?

·4 min read

Employees of large businesses could be required to get vaccinated by the first week of next year or get tested regularly for the coronavirus, according to rules spelled out by the federal government now in question.

President Joe Biden announced in September that new workplace requirements would soon be put in place, but the details weren't fully outlined until Thursday, when the Occupational Safety and Health Administration said those working for businesses with at least 100 employees will have to be fully vaccinated by Jan. 4 or be tested for the virus at least once a week. The 5th U.S. Circuit Court of Appeals granted an emergency stay Saturday of the requirement.

If the requirement is implemented, it would affect an estimated 84 million Americans, including state and local government employees in 26 states.

But what if the requirement goes through and your workplace doesn't comply, or refuses to accommodate your objection to getting the COVID-19 vaccine for medical or religious reasons?

Children 5-11 years old can now receive Pfizer's low-dose COVID-19 vaccine in the U.S.
Children 5-11 years old can now receive Pfizer's low-dose COVID-19 vaccine in the U.S.

Employees can report their employers

Under the new OSHA rules, workers who don't get the shot must undergo frequent coronavirus testing and will have to wear a face mask to work starting Dec. 5.

Those alternatives give large employers a little leeway when it comes to issuing a companywide vaccine mandate, attorneys say.

“The employer has the option to not require those employees to be vaccinated if they’ll comply with the masking and testing mandate,’’ says Michael Jones, a labor attorney with the firm Eckert Seamans in Philadelphia.

But large businesses that don't require vaccines or implement the new standards for testing and masks could face a penalty of up to $13,653 per violation. And OSHA could fine a company 10 times that amount if it appears to be flagrantly ignoring the federal rules.

Workers whose employers are skirting the new federal standards can report them, attorneys say.

"The employee recourse would be to file a complaint with OSHA and OSHA ... would investigate and potentially issue citations to the employer if they were not in compliance,'' Jones says.

Lawsuits also could be an option. But that most likely will occur only after a worker has first filed a complaint with OSHA or if they believe their civil rights are being violated via a complaint to the U.S. Equal Employment Opportunity Commission.

"The question is on what basis would they be suing,'' says Laura Mitchell, a principal with the law firm Jackson Lewis in Denver. "They’d have to identify where a right had been violated, or a law had been violated, but also demonstrate that they had exhausted what we call administrative remedies.''

And if a state bars employers from implementing the federal requirements, workers could also raise a challenge in court, Mitchell says.

Accommodations still allowed

Workers who say they have a medical or religious reason for not getting a vaccine can still seek accommodation from their workplace under Title VII of the Civil Rights Law of 1964.

Employers do not have to grant the exception if they claim it will cause the business "undue hardship,'' but if a worker feels their request is being unfairly denied, they can file a complaint with the EEOC, attorneys say.

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But a separate executive order that applies to federal contractors, as well as workers at health care facilities that work with Medicare or Medicaid patients, could cause some confusion.

For instance, those workers connected to the federal government must be vaccinated by Jan. 4 and will not have the option of being tested, though they can ask for testing as an accommodation.

Some companies may have employees who work on federal contracts and others who do not. To gain clarity on their company's policies, workers may want to contact their HR department, Mitchell says.

"Employers do have this web that they’re trying to weave through to see what it is that they’re required to do, and it may vary depending on the particular employee,'' says Mitchell. "From an employee's perspective, what may seem like noncompliance is actually a misunderstanding of what applies to them.''

Follow Charisse Jones on Twitter @charissejones

This article originally appeared on USA TODAY: New COVID-19 rules: What do you do if your boss doesn't comply?