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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.   

Provider Relief Funds – Continued Confusion Regarding Reporting Requirements and Lost Revenues

In Fall 2020, HHS issued multiple rounds of guidance and FAQs regarding the reporting requirements for the Provider Relief Funds, the most recently published notice being November 2, 2020 and December 11, 2020. Specifically, the reporting portal for the use of the funds in 2020 was scheduled to open on January 15, 2021. Although there was much speculation as to whether this would occur. And, as of the date of this article, the portal was not opened.

Ohio S.B. 310 Loosens Practice Barrier for Advanced Practice Providers

S.B. 310, signed by Ohio Governor DeWine and effective from December 29, 2020 until May 1, 2021, provides flexibility regarding the regulatorily mandated supervision and collaboration agreements for physician assistants, certified nurse-midwives, clinical nurse specialists and certified nurse practitioners working in a hospital or other health care facility. Originally drafted as a bill to distribute federal COVID funding to local subdivisions, the healthcare related provisions were added to help relieve some of the stresses hospitals and other healthcare facilities are facing during the COVID-19 pandemic.

HHS Issues Opinion Regarding Illegal Attempts by Drug Manufacturers to Deny 340B Discounts under Contract Pharmacy Arrangements

The federal 340B discount drug program is a safety net for many federally qualified health centers, disproportionate share hospitals, and other covered entities. This program allows these providers to obtain discount pricing on drugs which in turn allows the providers to better serve their patient populations and provide their patients with access to vital health care services. Over the years, the 340B program has undergone intense scrutiny, particularly by drug manufacturers who are required by federal law to provide the discounted pricing.

S.B. 263 Protects 340B Covered Entities from Predatory Practices in Ohio

Just before the end of calendar year 2020 and at the end of its two-year legislative session, the Ohio General Assembly passed Senate Bill 263, which prohibits insurance companies and pharmacy benefit managers (“PBMs”) from imposing on 340B Covered Entities discriminatory pricing and other contract terms. This is a win for safety net providers and the people they serve, as 340B savings are crucial to their ability to provide high quality, affordable programs and services to patients.

DOL Finalizes New Rule Regarding Independent Contractor Status, But Its Future Is In Jeopardy

On January 6, 2021, the Department of Labor announced its final rule regarding independent contractor status under the Fair Labor Standards Act. As described in a prior BMD client alert, this new rule was fast-tracked by the Trump administration after its proposal in September 2020. The new rule is set to take effect on March 8, 2021, and contains several key developments related to the "economic reality" test used to determine whether an individual is an independent contractor or an employee under the FLSA.