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EEOC Provides Updated Guidance Regarding Employer COVID-19 Vaccine Policies

Client Alert

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.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.