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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.   

Medicaid Announces Next Generation of Managed Care Organizations

For the first time since 2005, the Ohio Department of Medicaid (“ODM”) made significant changes to the structure of the Medicaid program by finalizing the Medicaid Managed Care Procurement process. The Procurement process began in 2019 at the behest of Governor Mike DeWine who had a goal to make Medicaid managed care more focused on the health and well-being of individuals.

BMD Appellate Win Clarifies Waiver of Contractual Right to Arbitrate

Brennan, Manna & Diamond, LLC attorneys David M. Scott, Lucas K. Palmer, and Krista D. Warren prevailed before the United States Court of Appeals for the Sixth Circuit regarding if/when a party waives a contractual right to arbitrate. Borror Property Management, LLC v. Oro Karric North, LLC, No. 20-3146 (the “Decision”).

Relief for Ohio Under the Federal American Rescue Plan Act

On March 11, 2021, President Biden signed the American Rescue Plan Act (the “Act”) — a $1.9 trillion COVID-19 relief package — a significant portion of which will be directed to the State of Ohio to support economic recovery, as outlined below.

Cleveland Manufacturer Violated OFAC Sanctions By Allowing Shipments To Iran - Know Your Customer and Know Their Customer

UniControl, Inc., a Cleveland, Ohio manufacturer of process controls, airflow pressure switches, boiler controls and other instruments, agreed to pay the Office of Foreign Assets Control “OFAC,” the financial enforcement agency of the U.S. Treasury Department, $216,464 to settle its liabilities for violations of the Iran Sanctions Program. OFAC stated that “this enforcement action highlights the importance of identifying and assessing multiple warning signs that indicate a foreign trade partner may be re-exporting goods to a sanctioned jurisdiction.”

Ohio Breach of Contract Statute of Limitations Shortened to 6 Years

On March 16, 2021, Governor DeWine signed into law S.B. 13 which shortens Ohio’s statute of limitations for filing lawsuits based on breach of contract. A statute of limitation is the time period within which a party must file a lawsuit before its claim expires as a matter of law.