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Vaccination Considerations for Employers

Today, three Covid-19 vaccines have tested as highly effective (90%+ efficacy) and are advancing in the process for emergency use. This is especially welcome news in Ohio, which has skyrocketing cases and our strategic response has been to turn the entire state into the small town of Bomont with strict curfews and bans on social gatherings.[1]

Polls, for what they are worth, have indicated that only 60%-70% of Americans are somewhat or very likely to get a Covid-19 vaccine. A recently released STAT-Harris poll indicates that about 66% of adults would voluntarily receive a vaccine.

Q:        Can Employers Require a Covid-19 Vaccine?

A:        Yes (Qualified)

Private employers can require employees to receive a Covid-19 vaccine in combination with some legal and policy considerations. Before discussing those considerations, note that the EEOC has not weighed in on a Covid-19 vaccine requirement and make sure to check back for updates. However, the EEOC has already determined that the Covid-19 pandemic meets the ADA’s "direct threat” standard of posing a “significant risk of substantial harm” to those in the workplace, so its vaccination guidance is likely to be inclusive. It has previously asked employers to “encourage” rather than “require” vaccinations, but that was before Covid-19. State laws may also weigh in on mandatory vaccinations for private employers. Healthcare and public employers are subject to federal and state regulations.   

The two (2) key 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. Additionally, pregnant employees may request exemption from vaccination under certain circumstances.    

From a policy perspective, employers will need to give advance notice to employees of the vaccination policy. The policy should address the purpose, the exceptions, the costs, and the alternatives. Employers should decide whether the policy applies to all employees, or only those who have close interaction, travel, provide key services, cannot remote work, and/or any other factors. Finally, the employer should also make an educated decision of when to implement the policy based upon the safety, efficacy, and availability of the vaccines. Employees who have a negative reaction to a mandatory vaccination may have a workers’ compensation claim. 

Q:        What About Anti-Vaccination Employees?

A:        Likely Yes

The anti-vax movement is small but zealous, and it is growing. However, it is rarely based on religious beliefs. If an employee objects to vaccination on medical or ethical beliefs, it will not automatically excuse a mandatory vaccine. The employee must have a qualifying disability or religious belief. Remember to check for any state opt-out laws.  

Q:        What Should Employers Do Now?

A:        Begin Planning

While all employers and all workforces are different, some universal steps employers can follow are:

  • The early adoption and notification of a vaccination policy. This can be done unilaterally or with input from the workforce, including:
    • An anonymous employee survey asking employees whether they (1) will receive a vaccination, (2) are likely to receive a vaccination, or (3) will not receive a vaccination can assist with planning.
    • Asking employees to raise any immediate private concerns about mandatory vaccination.
  • Consider encouraging vaccination by rewarding employees, paying for any costs, and/or permitting employees to take paid time for the vaccination if scheduled by the employer.
  • Consider remote work, workplace isolation by shifts or areas, and/or physical solutions (masks, barriers, air purifiers, etc.) for objections to vaccination.
  • Consider leaves of absence or termination of employees as a final resort.

As the vaccine process continues, the laws, rules, and guidance on vaccination policies will also continue to develop. Please call or email Jeff Miller at 216.658.2323 or jcmiller@bmdllc.com with any questions or planning advice or any member of BMD’s Labor + Employment Team.

[1] Since you’re checking this footnote, I’m guessing you’re under 40. I’m not going to tell you where you can find the small town of Bomont. I used to think of myself as a Ren MacCormack, even though I was always really a Willard Hewitt. Both are heroes. Do yourself a favor and find them on your own.   

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.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.