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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 NIL Opportunities for Student-Athletes Require Diligent Review

On June 28, 2021, Governor Mike DeWine signed Executive Order 2021-10D, “Establishing the Duties of Colleges and Universities as to Name, Image, and Likeness Compensation of Student-Athletes.” The Executive Order was motivated by the passage of similar name, image, and likeness (“NIL”) regulations in seventeen (17) other states; Ohio followed suit to avoid a significant competitive disadvantage in attracting student-athletes to the state.

Tax Savings Potentially on the Chopping Block under President Biden’s American Jobs Plan and American Families Plan

Recently, President Biden has proposed several tax law changes in his American Jobs Plan and American Families Plan. Outlined below, are a few of the tax savings that could be significantly changed or eliminated under Biden’s plans.

Here are the Final Candidates for Mayor of Cleveland

Earlier this year, current Cleveland Mayor, Frank Jackson, announced he would not run for re-election this fall. With no need to beat an incumbent, the Cleveland mayoral race suddenly became competitive. Thirteen individuals declared their intent to run for mayor. The City of Cleveland, however, has a difficult qualification requirement to run: 3,000 valid signatures from Cleveland residents. The deadline to file a petition to run, with the 3,000 valid signatures, had to be submitted by June 16 (yesterday).

What Happens to a Pandemic Stimulus Payment Upon Death?

On January 1, 2021, the federal government issued stimulus payments (also known as Economic Impact Payments) to American citizens – on paper. However, many of the stimulus payments were not received until several months later. Sometimes the stimulus payments did not arrive until after an individual died.

The Masks Are Back: New OSHA Regulations for Healthcare Employers

Employment Law After Hours is back with a News Break Episode. Yesterday, OSHA published new rules for healthcare facilities, including hospitals, home health employers, nursing homes, ambulance companies, and assisted living facilities. These new rules are very cumbersome, requiring mask wearing for all employees, even those that are vaccinated. The only exception is for fully vaccinated employees (2 weeks post final dose) who are in a "well-defined" area where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.