Mandating uncertainty: Vaccine requirements remain unclear

David Scanga
Kelly Murphy

The status of COVID-19 vaccination mandates has been confusing to say the least. Here’s a look at federal and state mandates as well as exemptions.

A minimum of three federal mandates affect most employers in the United States.   

President Joe Biden announced on Sept. 9 the Occupational Safety and Health Administration would institute an emergency temporary standard mandating COVID vaccinations. OSHA issued a standard on Nov. 4 that requires most private employers with 100 or more employees to mandate the following:

Implement and enforce a vaccination policy that requires mandatory COVID vaccinations or covered employees who aren’t vaccinated to submit to weekly testing with negative results and wear a mask in the workplace.

Require employees who aren’t fully vaccinated to test at least once every seven days before reporting to work.

Provide employees a reasonable amount of time to obtain vaccinations, including up to four hours of paid time off outside of established leave plans. Employers also must provide paid sick leave to recover from any side effects from the vaccination if necessary.

Keep records of acceptable proof of vaccination and rosters of employees indicating their vaccination status, COVID test results and work- related COVID fatalities, injuries or hospitalizations.

Report work-related COVID fatalities to OSHA within eight hours of being informed of the deaths and report any work-related in-patient hospitalizations within 24 hours of learning about the admissions.

Biden’s executive order on Sept. 9 also required federal workers and contractors to receive COVID vaccinations. On Sept. 24, the Safer Federal Workforce Task Force promulgated its COVID workplace safety guidance for federal contractors and subcontractors. The guidance was updated as late as Nov. 24. The guidance required covered federal contractors to have employees fully vaccinated by Dec. 8. Covered federal contractors include subcontractors, even if they’re small businesses. 

On Nov. 4, the Centers for Medicare and Medicaid Services issued regulations requiring COVID vaccinations for most health care workers at health care facilities certified by CMS. The regulations apply to both clinical and nonclinical staff.  That includes employees, licensed practitioners, students, trainees, contractors and others with direct or indirect contact. That also includes contractors who provide treatment or services to the facility. The regulations require the vaccination series be completed by Jan. 4.   

At this point, each of the three federal mandates have been enjoined by federal court rulings and still face a minimum of 34 lawsuits. On Dec. 8, the U.S. Senate passed a resolution to repeal the emergency temporary standard drafted by OSHA. President Biden promised to veto the measure if it passes the House and reaches his desk. 

Until these matters are resolved, employers must wait. It’s recommended, though, that employers prepare for the mandates by drafting policies and plans for implementation even if it proves a futile process.

The Colorado Department of Public Health & Environment seems more stable in its regulation mandating COVID vaccinations for all licensed health facilities. 

On Aug. 30, the CDPHE adopted a rule mandating facilities to implement and enforce a policy to guarantee 100 percent of their employees, direct contractors and support staff obtain full COVID vaccinations or approved exemptions for religious or medical reasons. 

The rule requires individuals who have the potential for exposure to clients of the facility or to infectious materials, contaminated surfaces or contaminated air comply with the vaccination mandate. We know employees in the health care setting are exposed. But what about independent contractors, volunteers and those not directly involved in the patient care? The following individuals need a closer look:

Students, trainees and residents.

Independent practitioners and nursing and agency staffs.

Support staff or volunteers who could be exposed to COVID in or outside of the facility.

Employers must understand not only which mandates apply to them, but also how to handle religious and medical exemption requests. Employers should first review the applicable mandates and determine how the requirements deal with exemptions. Second, employers must determine how to comply with the Americans with Disabilities Act, Title VII and other anti-discrimination laws when implementing vaccination mandates.  

In Colorado, the CDPHE indicates each facility may determine the criteria as long as it is documented.  

Federally, the Equal Employment Opportunity Commission issued guidance for employers handling employee requests for religious exemptions. Specifically, they stated employees must inform the employer of the request based on a conflict with a sincerely held belief, practice or observance. In their own form — found at —  the EEOC requires employees to identify the following:

What requirement, policy or practice conflicts with the sincerely held belief, practice or observance.

The nature of the sincerely held belief, practice or observance that conflicts with the requirement.

What specific accommodations or modifications the employee requests.

The CDPHE has more stringent requirements for medical exemptions, including a form signed by a Colorado licensed physician, physician assistant, advanced practice nurse such as a nurse practitioner or a certified midwife. This form must indicate the individual is medically contraindicated to the vaccine as described specifically in the product label for FDA-approved vaccines.
To comply with federal law, employers should require appropriate documentation from health care providers when employees request an accommodation due to a medical reason.   

Given the changing environment, employers should connect with legal counsel, human resource consulting firms and government websites to remain informed.

Kelly Murphy works as a human resources business partner with Lighthouse HR Support in Grand Junction. She brings to her duties nearly 30 years of experience as well as designations as a Professional in Human Resources and Society for Human Resource Management Certified Professional. She also serves on the Western Colorado Human Resource Association board of directors.

David Scanga is managing shareholder of the Hoskin, Farina & Kampf law firm in Grand Junction. His practice includes business, employment and health care law. He’s a frequent presenter to groups on employment and health care law issues. This column was provided by the Western Colorado Human Resource Association. For more information, visit