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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.   

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.