The rise of COVID-19 has brought many health care questions regarding work to the forefront. As a Wood + Lamping attorney whose practice focuses primarily on health care and business law, I’ve seen the full spectrum of health care compliance and regulatory issues. Given my experience, I think it‘s valuable to share what I’ve learned and how it relates to the COVID-19 pandemic. I hope my insights provide you with some needed clarity.
Q: Can an employer request that an employee get a flu vaccine?
A: Health care employers can require employees to receive a flu vaccine. Most employers allow the following exceptions to a vaccination requirement:
1. Medical Reasons (if the employee can show they are allergic or that the vaccine would otherwise be detrimental to their health); or
2. Religious Objections (if getting a vaccine would violate an employee’s bona fide religious beliefs).
Courts have interpreted those two exceptions narrowly. For example, Cincinnati Children’s HospitalMedical Center successfully defended against a lawsuit brought by a nurse who refused to be vaccinated because she was a vegan; the vaccine contains small quantities of chicken egg product.
In non-healthcare work settings, it is harder to justify requiring employees to get the flu vaccine. Overall, the analysis is a balancing test. That balance tends to shift in the employer’s favor in the health care industry. But outside of that context, the balance moves toward the employee and requires the employer to justify demanding that an employee undergo what is essentially medical treatment. With that said, this doesn’t mean that employers outside the health care industry cannot mandate flu vaccines as long as they have legitimate business reasons. The current pandemic would strengthen legitimacy for mandating flu vaccines. The Equal Employment Opportunity Commission recommends that all employers strongly encourage flu vaccination through onsite vaccination programs, paid leave to get vaccinated, etc.
Q: Can an employer disclose the name of an employee who tests positive for COVID-19 to other employees?
A: The Americans With Disabilities Act requires that an employer maintain the confidentiality of an employee who tests positive for Covid-19. If an employee tests positive, the employer should ask the affected employee who in the workplace they have had contact with during the two weeks preceding the positive test. The employer should alert those who have been in contact with the infected employee as soon as possible and encourage them to monitor symptoms and take precautions to prevent a spread. The law is clear that the employer should inform everyone in the workplace who was possibly exposed without revealing the affected employee’s identity.
Q: Should an employer ask an employee who interacts with the public to sign a COVID-19 waiver?
A: A waiver is not necessary in light of Ohio’s new immunity law. Here is a summary of the law.
On Sept. 14, 2020, Governor DeWine signed into law Ohio House Bill 606, which provides temporary immunity from civil actions related to the transmission of COVID-19 and limited immunity to health care providers related to civil actions and professional disciplinary actions. The law goes into effect on Dec. 13, 2020, and applies to causes of action arising from March 9, 2020, through Sept. 30, 2021.
Ohio House Bill 606 provides that a person may not bring a civil action for damages of injury, death, or loss to person or property if the action is based in whole or in part on the allegation that the injury was caused by the exposure, transmission, or contraction of MERS-CoV, SARSCoV, or SARS-CoV-2 (i.e., the virus that causes COVID-19) or any mutation thereof. However, this immunity does not apply if the exposure, transmission, or contraction resulted from the defendant’s reckless, intentional, or willful or wanton misconduct. The law protects individuals, corporations, business trusts, estates, trusts, partnerships, and associations and explicitly states that schools, for-profit or nonprofit entities, governmental entities, religious entities, and state institutions for higher education are intended to be covered under the foregoing broader categories.
In addition, Ohio House Bill 606 provides protection to a broad range of health care providers. Health care providers are not subject to professional disciplinary action and are not liable for damages for injury, death, or loss to a person or property arising from the provision, withholding, or withdrawing of services or the compliance with an order issued during or in response to an emergency or disaster (such as COVID-19).
There are exceptions to this rule. A health care provider can still be subject to professional disciplinary actions if their conduct constitutes gross negligence. Additionally, health care providers are not extended immunity in a civil action if their conduct constitutes a “reckless disregard for the consequences so as to affect the life or health of the patient” or intentional, willful, or wanton misconduct. Notably, the immunity applies only to (i) the provision, withholding, or withdrawal of health care services and medical care; (ii) decisions related to such services or care; and (iii) compliance with an executive order or director’s order by a health care provider as a result of or in response to a disaster or emergency and through the duration of the disaster or emergency, and not simply care provided during the subject period.
Q: Can an employer terminate or lay off an employee for not following the employer’s policies regarding Covid-19?
A: Yes. However, the employer should not disclose to other employees the reason for the termination. The employer should simply state that the termination was related to the terminated employee’s failure to follow workplace policies and procedures.
Q: Can an employer terminate or lay off an employee for failing to follow social distancing orders/guidelines issued by the state or city, such as attending services at a megachurch or not wearing a mask at a crowded bar?
A: Yes. However, the employer should not disclose to other employees the reason for termination. The employer should simply state that the termination was related to conduct detriment to the integrity of the workplace.
Of course, not all COVID-19 questions as they relate to work have been answered here. If you still have outstanding concerns or questions, please don’t hesitate to reach out to me directly at ORRumberg@woodlamping.com.