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UPDATE - Vaccine Policy Considerations for Employers

If you read our post from November, you’re already an informed employer. This first post of 2021 is to share good news, give a few updates, and answer some other common questions.

Q:        What’s the Good News?

First, the EEOC confirmed that employers may require employees receive the COVID-19 vaccine.

Second, polling indicates that the number of Americans who said they will receive a vaccine has increased from around 63% to over 71%. The number of Americans who are strongly opposed to a vaccine is about 27%.

Third, initial returns show that the efficacy rate for certain vaccines is as high as 95% for some at-risk recipients.

Q:        Can Employers Adopt a Mandatory COVID-19 Vaccine Policy?

A:        Yes (with a few qualifications)

Employers can require employees to receive a COVID-19 vaccine. Before implementing a mandatory vaccination policy, employers must account for a few legal and policy considerations, including:

  • Exceptions/accommodations for disabilities under the Americans with Disabilities Act (ADA).
  • Exceptions/accommodations for sincerely held religious beliefs under Title VII of the Civil Rights Act.
  • Collective bargaining with employees represented by unions.
  • Avoiding “protected concerted activities” issues in union and non-union workplaces where 2 or more employees discuss or oppose mandatory vaccination policies.
  • Potential workers’ compensation claims for adverse reactions to the vaccination.
  • Exceptions for pregnant/nursing mothers.

We have been advising clients on the differences between a “strongly encouraged” policy and a “mandatory” policy depending upon the workplace.

Q:        Can We Require Proof of Vaccination?

A:        Yes

You can ask or require employees to show proof of vaccination. (a Certificate of Vaccination Identification a/k/a COV-ID.)

Be careful that the information from employees does not include any personal medical information beyond the proof of vaccination. Employers should also be cautious about asking employees why they did not receive a vaccine because it could be viewed as a disability-related inquiry. 

Q:        What is the Exception/Accommodation Process?

A:        An individualized process reviewing the request and determining whether an accommodation is reasonable.

The two (2) legal evaluations for all employers are Religious Exceptions and Disability Accommodations which may exempt employees from mandatory vaccinations. Employers may need to accommodate the sincerely held religious beliefs of employees if vaccination legitimately offends those religious beliefs. Employers may also need to provide a reasonable accommodation for qualified disabilities where the vaccination could impact underlying medical conditions. 

Employers must perform an individualized accommodation evaluation for exceptions to a mandatory vaccine policy because of disabilities or religious beliefs. The same evaluation process can be used for other voluntary exceptions the employer decides to allow.

While the full evaluation process is complex, the basic analysis is for employers to determine whether a reasonable accommodation can be implemented as compared against the significant risk of substantial harm caused by the direct threat of an unvaccinated employee.

Q:        What are Reasonable Accommodations?

A:        Anything that can reduce/eliminate the direct threat of risk to other employees, customers, visitors.

The purpose of a COVID-19 Vaccine Policy is to reduce the risk of transmission of the virus.  Depending upon your workplace and operations, this can be accomplished through remote work, isolating the unvaccinated employees by shift/location/duties, using masks, ventilation and physical barriers. Depending upon your other policies and workforce decisions, a temporary leave of absence could be considered.  The final alternative should be termination.

Q:        Can Employers Incentivize Vaccination?

A:        Sure

Non-union employers can implement any program to encourage vaccination, but keep in mind that 70%+ of your workforce already wants to receive the vaccine. Some vaccination encouragements by employers can include:

  • On-site vaccination administered by an employer or a third-party service. A vaccination is not a medical examination under the ADA.
  • HSA bonus contributions for vaccinated employees.
  • Granting paid time off for vaccination days.

As the vaccine process continues, the laws, rules, and guidance on vaccination policies will also continue to develop. Please call or email me (216.658.2323 jcmiller@bmdllc.com) with any questions or planning advice.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

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.