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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.   

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”