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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.

Investment Training for the Second and Third Generations

Consider this scenario. Mom and Dad started the business from the ground up. Over the decades it has expanded into a money-making machine. They are able to sell the business and it results in a multimillion-dollar payday for their labors. The excess money has allowed Mom and Dad to invest with various financial advising firms, several fund management groups, and directly with new startups and joint ventures. Their experience has made them savvy investors, with a detailed understanding of how much to invest, when, and where. They cannot justify formation of a full family office with dedicated investors to manage the funds, but Mom and Dad have set up a trust fund for the children to allow these investments to continue to grow over the years. Eventually, Mom and Dad pass. Their children enjoy the fruits of their labors, and, by the time the grandchildren are adults, Mom and Dad's savvy investments are gone.

Provider Relief Funds – Continued Confusion Regarding Reporting Requirements and Lost Revenues

In Fall 2020, HHS issued multiple rounds of guidance and FAQs regarding the reporting requirements for the Provider Relief Funds, the most recently published notice being November 2, 2020 and December 11, 2020. Specifically, the reporting portal for the use of the funds in 2020 was scheduled to open on January 15, 2021. Although there was much speculation as to whether this would occur. And, as of the date of this article, the portal was not opened.

Ohio S.B. 310 Loosens Practice Barrier for Advanced Practice Providers

S.B. 310, signed by Ohio Governor DeWine and effective from December 29, 2020 until May 1, 2021, provides flexibility regarding the regulatorily mandated supervision and collaboration agreements for physician assistants, certified nurse-midwives, clinical nurse specialists and certified nurse practitioners working in a hospital or other health care facility. Originally drafted as a bill to distribute federal COVID funding to local subdivisions, the healthcare related provisions were added to help relieve some of the stresses hospitals and other healthcare facilities are facing during the COVID-19 pandemic.

HHS Issues Opinion Regarding Illegal Attempts by Drug Manufacturers to Deny 340B Discounts under Contract Pharmacy Arrangements

The federal 340B discount drug program is a safety net for many federally qualified health centers, disproportionate share hospitals, and other covered entities. This program allows these providers to obtain discount pricing on drugs which in turn allows the providers to better serve their patient populations and provide their patients with access to vital health care services. Over the years, the 340B program has undergone intense scrutiny, particularly by drug manufacturers who are required by federal law to provide the discounted pricing.

S.B. 263 Protects 340B Covered Entities from Predatory Practices in Ohio

Just before the end of calendar year 2020 and at the end of its two-year legislative session, the Ohio General Assembly passed Senate Bill 263, which prohibits insurance companies and pharmacy benefit managers (“PBMs”) from imposing on 340B Covered Entities discriminatory pricing and other contract terms. This is a win for safety net providers and the people they serve, as 340B savings are crucial to their ability to provide high quality, affordable programs and services to patients.