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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.

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”