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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.


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.