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EEOC Provides Updated Guidance Regarding Employer COVID-19 Vaccine Policies

On May 28, 2021, the U.S. Equal Employment Opportunity Commission updated its guidance regarding employer COVID-19 vaccination policies. The new guidance provides much-needed clarification of expectations for employers seeking to promote workplace safety and prevent the spread of COVID-19, including discussion of mandatory vaccination policies, voluntary vaccination incentives, and accommodation of employees based on disability or sincerely held religious beliefs. The full text of the update is found in Section K of the EEOC’s COVID Q&A document. You can also learn more about these and other developments from BMD's Bryan Meek and Monica Andress through the Employment Law After Hours YouTube channel, available here.

Can employers require employees to get the COVID-19 vaccine?

Yes, the EEOC guidance explains that federal laws do not prevent an employer from requiring employees who are physically in the workplace to be vaccinated for COVID-19.

Must employers make any exceptions to a mandatory COVID-19 vaccine policy?

Yes, in certain cases, employees may be entitled to reasonable accommodation due to a disability or a sincerely held religious belief, unless the accommodation imposes an undue hardship on the employer.

If an employee refuses to get the COVID-19 vaccine based on a disability, the employer should engage in an interactive process to determine if accommodation is appropriate. If the employee has a qualifying disability that prevents vaccination, the employer should evaluate whether the unvaccinated employee is a direct threat to the safety of the workplace. This is a case-by-case determination that should consider such factors as the level of community spread of COVID-19 at that time, whether the employee works alone or in close proximity to others, frequency and duration of interactions with others, the extent of vaccination or mask-wearing in the workplace, and space available for social distancing.

If the unvaccinated employee poses a direct safety threat, the employer should then consider whether a reasonable accommodation would eliminate the threat. Accommodations could include permitting the unvaccinated employee to wear a face mask, social distance from coworkers and others, work a modified shift, get periodic tests for COVID-19, telework, or accept a reassignment to a different position that alleviates the risk. If reasonable accommodation will not eliminate the direct safety threat, or it otherwise imposes an undue hardship based on cost or other factors, the employer would not need to provide an accommodation to the employee. 

Can employers provide incentives that encourage employees to get the COVID-19 vaccine?

Yes, employers may offer incentives, including monetary incentives, to encourage employees to get the COVID-19 vaccine. Note that if the vaccine is administered directly by the employer or its agent, the incentive must not be "so substantial as to be coercive." This limitation does not apply if the employee gets the vaccine on their own from a third party.

Can employers request documentation of vaccination from employees in connection with an incentive program?

Yes, an employer can make voluntary vaccination incentives contingent on the employee providing documentation verifying that they received the COVID-19 vaccine.
 

What other requirements should employers keep in mind related to COVID-19 vaccination policies?

  • Any documentation or information regarding an employee's vaccination, like any other medical information, must be kept confidential and stored separately from the employee’s personnel files.
  • Employer vaccine policies must comply with federal nondiscrimination laws, and such policies should not treat groups of employees differently based on protected categories, including race, national origin, color, sex, religion, age, or disability.
  • If an employee is fully vaccinated and still requests an accommodation because of risks related to COVID-19 (e.g., due to being immunocompromised), the employer should treat it like any other accommodation request, engage in the interactive process, and explore potential reasonable accommodations.

The BMD Employment and Labor Law Practice Group will keep you updated as further developments arise, and we are available to assist if you have questions regarding COVID-19 employment policies and practices.

For more information, contact Labor and Employment Attorney Russell Rendall at rtrendall@bmdllc.com or (216) 658-2205.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.