Nebraska Updates Vaccine Mandate Legislation

On February 25, 2022, the Nebraska Legislature passed LB 906, which addresses COVID-19 vaccine mandates implemented by Nebraska employers.  It allows for certain exceptions for employees who complete a form prepared by the Nebraska Department of Health and Human Services for medical or religious objections, and also permits employers to require wearing of masks and periodic testing at employer expense.  The bill has an emergency clause which means that as soon as it is signed by the Governor, it becomes fully effective.  The details of this new legislation are set out below.

The new COVID-19 vaccine mandate legislation applies to all private Nebraska employers regardless of size, as well as the State of Nebraska, government agencies and all political subdivisions.  However, it should be emphasized that Nebraska employers in the healthcare industry are already subject to the Federal vaccine mandate applicable to healthcare employers, which will take precedence over the new Nebraska COVID-19 legislation.  It should also be emphasized that LB 906 only applies to COVID-19 vaccinations, and no other employer mandated vaccinations. 

The new law does not apply to the United States and other Federal agencies, Indian tribes, and bona fide private membership clubs exempt from taxes under the Internal Revenue Code.

It requires the Nebraska Department of Health and Human Services to develop a vaccine exemption form for individual employees to submit to claim an exemption from receiving a COVID-19 vaccine.  The form is required to contain two separate potential declarations:  (1) that a certified healthcare practitioner has provided the individual with a signed written statement that receiving a COVID-19 vaccine is medically “contraindicated for the individual”, or that “medical necessity” requires the individual to delay receiving a COVID-19 vaccination; or (2) receiving a COVID-19 vaccine would conflict with the individual’s “sincerely held religious belief, practice, or observance.”

Once this new law takes effect, any Nebraska employer that requires applicants or employees to be vaccinated against COVID-19 must allow for an exemption to the COVID-19 vaccine requirement for any individual who provides the employer with the completed vaccine exemption form, and for any individual claiming the exemption based upon the statement of a healthcare practitioner, a copy of the health practitioner’s signed written statement.

Nebraska employers may require any employee granted an exemption under this new law to be periodically tested for COVID-19 at the employer’s expense, and to wear and use masks or other personal protective equipment provided by the employer.

This differs substantially from recently proposed Federal vaccine mandate legislation as well as the current Federal vaccine mandate applicable to healthcare employers.  Specifically, other vaccine mandates and proposed legislation provide(d) that an employee seeking to avoid the vaccination mandate and be granted an exception would assume the cost of periodic testing in order to be exempt from the vaccination requirement.  Nebraska employers who desire to exercise their right to mandate COVID-19 vaccinations are now faced with bearing a considerable cost of periodic testing for employees who submit the exemption form.  Business organizations and the Chambers of Commerce were opposed to this provision, but were unsuccessful in keeping it out of the final version of LB 906. 

Given that the COVID-19 outbreak is waning, and with much of the population already vaccinated, or immune due to having had COVID, this Legislation may just be a solution in search of a problem.  However, the Legislation passed by a vote of 37-5, with 5 abstentions, so there was obviously a strong feeling among the majority of Senators in the Nebraska Legislature that a law limiting employer COVID-19 vaccine mandates was required at this time.

It will be interesting to see how this new law develops, and how many Nebraska employers determine that they will either implement or continue an existing COVID-19 vaccination requirement.  Employers in the healthcare industry are still covered by the Federal vaccine mandate applicable to healthcare organizations. 

One interesting aspect is the fact that any employee who seeks to declare a religious exemption must simply fill in the form stating that receiving a COVID-19 vaccination would conflict with their “sincerely held religious belief, practice or observance.”  There is no threshold requirement to establish such beliefs, which differs considerably from the law in the area of religious discrimination in employment, which requires that any individual seeking to assert a religious discrimination claim establish or prove that they are actually a member of a particular religion, and an active participant in the particular religion’s practices and activities.  For purposes of the new law on COVID-19 vaccinations in Nebraska, it is clear that an employee seeking an exemption must simply fill out the form and include that particular section in seeking an exemption.

As noted above, LB 906 has an emergency clause, so it will go into effect as soon as it is signed by the Governor, which will likely be early in the week of February 28th.  Therefore, any Nebraska employer that currently has a COVID-19 vaccination mandate or is considering implementing one, should take immediate steps to comply with this new Nebraska law.

December 20 Update Regarding Vaccine Mandates

Erickson|Sederstrom provides this update regarding the status of various vaccine mandates issued by the Biden administration.  These mandates have been the subject of court challenges with varying results.  It continues to be crucial for employers to remain up to date regarding the current status of vaccination requirements that affect their businesses, as the litigation will continue to move through the courts, leading to unpredictable outcomes until final resolution is reached, likely in the Supreme Court of the United States. 

In a key development, an injunction against enforcement of the large business mandate was lifted on December 17.

Large Business Mandate

Businesses with 100 or more workers must require employees to be vaccinated.  Unvaccinated employees must be tested weekly and wear masks while working.  The rule contains exceptions for employees who work alone or mostly outdoors.

This rule had been enjoined nationwide.  On Dec. 17, a three-judge panel of the 6th U.S. Circuit Court of Appeals allowed the mandate, lifting the injunction against enforcement.  Multiple cases from across the country had been consolidated into the 6th Circuit, which was selected at random through a court lottery system.

OSHA has announced that it will not issue employer citations before Jan. 10 for its vaccination mandate or before Feb. 9 for its testing requirement.

Health Care Worker Mandate

A wide range of health care providers that receive federal Medicare or Medicaid funding were to require workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. The rule would affect more than 17 million workers in thousands of health care facilities and home health care providers.

The rule is enjoined in Nebraska and adjoining states.  A Missouri-based federal judge issued an injunction Nov. 29 barring the rule from enforcement in 10 states that had originally sued in federal court in Missouri.  There are injunctions in place in some other states based on separate lawsuits. 

The Biden administration is appealing these court rulings in separate appellate courts.  At this point, the cases have not been consolidated into any one federal appellate court. 

Federal Contractor Mandate

Contractors and subcontractors for the federal government are required to comply with federal workplace safety requirements, which require that new, renewed, or extended contracts include a clause requiring employees to be fully vaccinated Jan. 18.  There are limited exceptions for medical or religions reasons.

A federal judge in Georgia issued an injunction December 7 prohibiting enforcement of the requirement for contractors.  The ruling applies nationwide.  An appeal is expected.

Nebraska Employees Terminated for Refusing to Receive a COVID-19 Vaccination Pursuant to An Employer Instituted Vaccine Requirement Eligible for Unemployment Compensation

The Nebraska Department of Labor (NDOL) recently issued a guidance memorandum regarding unemployment benefit eligibility for employees terminated for refusing to receive a COVID-19 vaccination.  The guidance memorandum posted very quietly on the NDOL website is advisory in nature, but is binding on the NDOL, including its claims examiners and appeals tribunal, and Administrative Law Judges, unless or until amended by the NDOL.  Let’s examine the new guidance to determine its full effect on Nebraska employers.

Background.

The guidance memorandum posted in late November, 2021 is intended to provide individuals and Nebraska employers with an understanding of how the NDOL will interpret the definition of “misconduct” as applied under the Nebraska Employment Security Law to determine a separated employee’s eligibility for unemployment compensation benefits.  It has become settled law in Nebraska that, when an employee is involuntarily terminated from employment, the employee is eligible for unemployment compensation benefits unless the reason for the termination amounts to “misconduct”.  Misconduct is defined under the Nebraska Employment Security Law as conduct “not in the best interests of the employer.”  As a practical matter, employees terminated for unsatisfactory performance are not disqualified from receipt of unemployment compensation benefits, and there must be some clear violation of a critical employer interest, policy or rule to constitute misconduct.  Employees found to have engaged in misconduct that is gross, flagrant, willful or unlawful receive a more lengthy disqualification for eligibility for unemployment compensation benefits. 

New Guidance.

The NDOL’s recent guidance implements the following rule to be followed within the agency in employee separations due to the employee’s refusal to receive a COVID-19 vaccination.

“For all individuals who began work for an employer prior to an employer instituting a COVID-19 vaccine requirement:

--  an individual who is discharged from employment for refusing to receive a vaccination against Covid-19, shall be deemed to have been discharged for reasons other than misconduct and not be disqualified for unemployment benefits on account of such discharge; and

--  impact to an employer’s experience account will be determined under Neb. Rev. Stat. § 48-652.”

In short, the guidance indicates that employees who are already employed when the employer implements a new COVID-19 vaccination mandate will receive unemployment compensation benefits, and those benefits will be applied against the employer’s unemployment compensation tax account.  Since the guidance is expressly limited only to those employees who became employed prior to the employer-instituted vaccination requirement, any employee accepting employment with an employer when the COVID-19 vaccination requirement has already been instituted, and who then refused to get a vaccination, would be subject to disqualification from receipt of unemployment compensation benefits due to violation of a known policy, i.e., conduct not in the best interests of the employer.

As a practical matter, however, it is not likely that any applicant who is going to refuse a COVID-19 vaccination in order to comply with the employer’s mandate would accept such employment in the first place, and it is not likely that this will become a major issue. 

Moreover, the recently issued COVID-19 vaccination requirements at the federal level are not currently being implemented or enforced, as the OSHA mandate covering private employers with more than 100 employees, the CMS rule requiring mandatory COVID-19 vaccinations for healthcare workers, and the federal mandate for all employees of employers with federal contracts, have all now been blocked by Federal Courts with the result that all implementation and potential enforcement has been terminated at the federal level for the time being. 

The NDOL apparently felt that this guidance memorandum and advisory was necessary since some employers are implementing COVID-19 vaccination mandates on their own.  Indeed, in issuing the guidance, the NDOL expressly recognized that under Nebraska law employers may institute COVID-19 vaccination requirements, while also expressly recognizing that Nebraskans have individual responsibility and personal freedom of their healthcare decisions and that the decision to receive a COVID-19 vaccination is a personal choice involving medical, religious, and other personal factors.  Based on these statements and the recognition that requirements may be issued by employers regarding COVID-19 vaccinations which may not have existed at the time individual employment was accepted, apparently caused the NDOL to believe that a policy guidance pronouncement was in order.

Time will tell how these issues will play out in Nebraska and at the federal level, and we will keep you updated on any further developments in this area.

Erickson | Sederstrom PC’s employment attorneys are well-versed in the COVID-19 pandemic-related changes in the legal and HR landscape. They can be reached 402-397-2200.

Mandatory Vaccination and Testing Requirements for Private Employers with Over 100 Employees

• OSHA issued its Emergency Temporary Standard (ETS) regarding Covid-19 vaccination and testing requirements on November 4, 2021. 

• The OSHA ETS will take effect immediately, but most requirements do not kick in until January 4, 2022, or thirty (60) days after the date the ETS was published in the Federal Register.  By January 4, 2022, employers will be required to comply with the vaccination requirements. 

• After sixty (60) days, employers must comply with all testing requirements for those employees who have not become fully vaccinated.   

• This new vaccination and testing mandate will apply to all employers with more than 100 employees, and to all federal contractors. 

• It will not apply to employees who either work at home or work outdoors. 

• Covered employers will have two options, the first being to mandate that all employees not working at home or outdoors must be fully vaccinated by January 4, 2022. 

• There is an exemption to the vaccination requirement for those employees who are entitled to a reasonable accommodation due to a sincerely held religious belief, i.e., active practice of a recognized religion and a valid religious objection. 

• An exemption will also be provided for any employee who has valid medical certification from a licensed healthcare provider that the employee should not receive the vaccination either because of a specific medical condition or disability.   

• Under the vaccination requirement, employees must provide proof of vaccination either through a CDC Vaccination Record Card, or other medical records of immunizations received, documentation from a certified pharmacy, or other source. 

• The vaccination must be one of the FDA approved vaccinations, i.e., Pfizer, Moderna or Johnson & Johnson. 

• Any employee who refuses to be vaccinated will have an alternative method of compliance with the mandate by wearing a mask at all times when they are not either in a personal office with the door closed, or eating or drinking, in combination with providing proof of a valid negative SARS test for Covid every seven (7) days. 

• There is no requirement that employers pay for the regular testing. 

• The OSHA ETS requires that all employers provide up to four (4) hours of paid time off for employees to get vaccinated, including travel time, as well as provision of reasonable paid time off to recover from any illness or side effects as a result of receiving the vaccination.   

• Any employee who has tested positive for Covid-19 in a SARS test or otherwise diagnosed with Covid by a licensed health practitioner will not be subject to testing for a period of ninety (90) days following any such positive diagnosis, due to the high incidence of false positives for ninety (90) days after a Covid infection. 

• All employers are required to establish a written policy concerning the mandatory vaccination requirement, and an alternative policy outlining the only exemptions the Mandatory Vaccination Requirement which allows employees to avoid the vaccination mandate by wearing a mask at all times in the workplace, unless in a private office with the door closed or eating, drinking, etc., and provision of proof of regular negative tests for Covid-19 every seven (7) days. 

• Covered employers found to be in violation may be fined up to $13,653 for each violation, and any covered employer found to have willfully or repetitively violate the standards may be fined up to $136,532.

 Our labor and employment law experts at Erickson | Sederstrom, P.C., LLO, can assist you with development of the required policies and on-going compliance with this new OSHA ETS Mandate.

OSHA Releases COVID-19 Vaccine ETS Requiring Vaccination for Employers with 100 or More Employees

On November 4, OSHA released its COVID-19 vaccine ETS (Emergency Temporary Standard), requiring many employers to implement COVID-19 mandates for vaccination and testing.  While legal challenges are expected, it is critical for employers to understand the requirements, develop polices, and be prepared to comply. 

The ETS applies to all private employers with 100 or more employees, but does not apply to employees who work from home, work in a location where no other individuals are present, or who work exclusively outdoors.  Covered employers will have until January 4 to ensure that their work forces are vaccinated.  But most other requirements of the ETS must be implemented by December 5.  Employees who are not vaccinated must submit to weekly coronavirus testing and mask wearing while in the workplace.  It is up to employers to decide whether employees can opt out of vaccination through the weekly testing.  However, employers are not required to provide or pay for testing, unless required by a union contract or other local law.  Employers are also required to provide up to four hours of paid time off to be vaccinated, as well as sick leave to recover from vaccine side effects. 

Employers will need to plan for employees claiming religious and medical exemptions. 

 When an employer is on notice that an employee holds a sincere religious belief, practice, or observance preventing the employee from obtaining a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.  This includes accommodation requests from employees preferring an alternative version or specific brand of COVID-19 vaccine available to the employee.   

A medical exemption would require a note from the employee’s doctor. 

 Erickson | Sederstrom’s experienced employment and labor law attorneys are ready to help manage these COVID-19 vaccination issues in the workplace.  Please do not hesitate to contact one of our attorneys.  Erickson|Sederstrom’s employment law attorneys can be reached at (402)397-2200.