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UPDATE - Vaccine Policy Considerations for Employers

Client Alert

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.


Community Banks: Collaboration, not isolation, is the key to protecting/ enhancing the cannabis business you pioneered

As we prepare for the plenary session of the informal institutional cannabis lenders community announced in my previous article, I am pleased to advise that participants now include 5 of the best-known dedicated loan funds; a select group of commercial banks ranging in size from single state community banks to mid-size regionals making cannabis loans into the mid-8 figures; and, a syndicator of credit union cannabis loans.

Inflation Reduction Act: Healthcare Provisions

On August 16, 2022, President Joe Biden signed into law the Inflation Reduction Act (the “Act”), a landmark climate, healthcare, and tax bill. Though the Act’s climate provisions have received most of the media attention, the healthcare aspects of the Act present some of the most significant changes to the American healthcare system since the passage of the Affordable Care Act.

The Current State of Assignment of Benefits Litigation in Florida

On May 25, 2022, Florida lawmakers approved property insurance reforms that remove attorney’s fees, with respect to assignment of benefits (“AOB”) property insurance litigation. One-way attorney’s fees are a longstanding problem in Florida and the reforms come at a time when AOB litigation increasingly affects homeowners in a negative way.

Proposed Community Revitalization Grants for Ohio Projects

Jason A. Butterworth client alert ohio tax credits historic preservation tax credits community revitalization grants

Ohio Senate Bill 225 Paves the Way for Greater Investment in Opportunity Zones and Historic Districts

Ohio Senate Bill 225 is poised to make dramatic enhancements to certain tax credit programs in Ohio, specifically those surrounding investments in “Opportunity Funds” and historic buildings. Signed into law by Governor Mike DeWine in June 2022, the Bill is positive news for real estate developers working to revitalize Ohio communities with investment and rehabilitation projects.