Must Have Covid-19 Policies for Employers

Intro: [00:00:01] Broadcasting from the Business RadioX studios in Atlanta, it’s time for Dental Law Radio. Dental Law Radio is brought to you by Oberman Law Firm, a leading dental-centric law firm serving dental clients on a local, regional and national basis. Now, here’s your host, Stuart Oberman.

Stuart Oberman: [00:00:26] Hello, everyone, and welcome to Dental Law Radio. The hot topic: Covid-19: What You Need to Know. I have a feeling that this is going to be going on, going for a while. Now, this is going to be sort of the second segment, if you will, of what we’ve done before, and we have probably two more segments to cover because, again, we can probably have this kind of segment speaking for eight hours on this topic.

Stuart Oberman: [00:00:59] So, last podcast, we covered COVID-19, Delta variant, mandates and legal liability. So, we covered the good, the bad, the ugly, and the mandates, the commendations, must-have policies. But now, we’re going to jump into and we’re going to drill down a little bit deeper on COVID-19 must-have policies. So, what does that mean? From a legal standpoint, I will tell you must have a policy mandatory or nonmandatory. You can’t just sort of trade defense on this. You’ve got to be all in either way. Either you’re going to mandate it and set guidelines. And then, policies and procedures, if it is not done, draw that line in the sand or you’re going to have nonmandatory policies, and then that’s a whole set of concerns.

Stuart Oberman: [00:01:59] So, what do we do? One, you’ve got to have a mandatory vaccination policy. Two, you got to have a non-mandatory vaccination policy. You got to have one or the other. If you have a mandatory policy for shots, if you will, you have to have a accommodation procedure. As we said in our previous podcast, there are some very, very stringent guidelines for mandatory matters. You have OSHA, you have CDC, you have EEOC, you have EEO, and then you have the FDA. So, on your mandated policies, you have to have a request for a medical exemption or an accommodation that is related to the vaccination. Then, you’ve got to have a request for religious exemption. And then, the accommodation related to the vaccination.

Stuart Oberman: [00:03:04] Now, I want to drill down specifically in policies. So, I want to outline things that have to be and should be in a policy. Now, I will urge you, do not go on the Internet, and cut and paste a vaccination policy because when you’re dealing with OSHA, CDC guidelines, EEOC, EEO and the FDA, that is an absolute trap that I will tell you will not be covered in the things you get on the Internet for cutting and pasting.

Stuart Oberman: [00:03:46] So, basically, basics, basics here, COVID-19 vaccination policy, what does that have to do? Okay. Purpose. You got to outline a purpose. That’s basic. You got to outline a scope. You have to have the policy which sets forth the deadline with which the employees have to have the policy or they have to do an exemption. Okay. So, those two things right there will dictate what forms you use, what forms you do not use.

Stuart Oberman: [00:04:23] So, now, I want to get into a little bit on the request for an exemption. Accommodation, if you will. Again, we’re back into — I know I keep stressing this, but any exemption that you have or receive has to be in guidance with OSHA, CDC, EEOC, EEO or FDA, because here’s why. So, what happens is the exemptions assist employees with disabilities who may be pregnant, who may be nursing, who actually have a qualified medical condition as to why they object to receiving the vaccination. And also, they have to outline that they have a sincerely held religious belief or practice.

Stuart Oberman: [00:05:14] Now, those are the requests for an exemptions. Okay. So, that’s an interactive process between you, the employee and HR. So, they have to show that one, it follows as an exemption; but two, the request has to show that it does not impose a undue hardship on the employer. And that has to be in writing in your document. And it also has to have or should have specific writing that the accommodation can be done and a request can be done without fear of retaliation. You retaliate against an employee who does not want to receive a vaccination, and you got all kind of federal law problems.

Stuart Oberman: [00:06:10] So, let’s take a little bit deeper dive into the request for a religious exemption or accommodation that’s related to the vaccination. So, first and foremost, you need to state very clearly that your practice, or for those who are not dental owners but maybe other business owners, that your business is committed to complying with all laws that protect employees’ religious beliefs. And that you will provide an exemption on a reasonable accommodation for employees’ religious beliefs and practices who prohibit the employee from receiving a COVID-19 vaccination. That is language that needs to be included, along with multiple sections of other exemptions.

Stuart Oberman: [00:07:12] Now, the language has the state — again, I would urge you to seek legal advice if you’re implementing these policies. Do not cut and paste. Now, the policy has to state that for religious exemption, you’re going to provide a reasonable accommodation – here’s the key – that does not create an undue hardship or pose a direct threat to the health or safety of others within the workplace, including the requested employee. So, those are just a small segment of things that have to be listed and outlined on the exemption accommodation.

Stuart Oberman: [00:07:59] So, now, we’ve got a whole another request. Okay. Request for a medical exemption or an accommodation related to COVID-19 vaccination. Again, key, key, key, key, your practice or business is committed to complying with all laws protecting individual rights with disabilities or medical conditions. And you, as employer, will provide an exemption for any medical condition or disability that prevents the employee from getting a COVID-19 vaccination.

Stuart Oberman: [00:08:43] Now, you can’t just go anywhere and get this. This is not like an excuse from your mom or dad, “I need to get out of school early.” This has to be a qualified medical exemption. So, you have to get, or should get, or mandated to receive written certification from a licensed treating physician or a DO – now, depending on your state, nurse practitioner or physician’s assistant, a PA. And there’s a specific outline, it must be noted in their medical report, if you will, as to why they should not receive the vaccination. Again, it has to be documented, meant medically that you are not entitled or required to receive the vaccination. That is a huge, huge burden to lift.

Stuart Oberman: [00:09:50] So, again, I’m going to refresh a little bit on a couple of things. So, mandated policies, okay, vaccination policies, it’s got to be in writing. You can’t just say, “Do this.” Nonmandatory vaccination policy, in writing. Not required. There’s whole steps for that that we’ll go into a little bit more detail. So, then if you have a mandated policy, you’ve got to have an accommodation request for either medical or religious reasons because you have to cover – it’s not optional – you’ve got to cover OSHA, CDC, EEOC, EEO and the FDA.

Stuart Oberman: [00:10:31] So, then, we just covered one of the basic things that have to be in an mandated policy. We covered specific things that have to be in the request for an exemption, for religious beliefs or for disabilities. So, again, I would urge you to seek counsel if you do not have these policies and procedures. And I will tell you, and I’ve said this before and I said this last year in 2000 when all this was taking place, if it’s not COVID-19, it’s going to be something else. We already got the Delta variant popping up that is creating a whole another set of issues. And there’s going to be something after COVID-19 because there always is. You got the swine flu. You got a million things that have happened. So, you got to get it in place now because, otherwise, you are asking for a recipe for disaster.

Stuart Oberman: [00:11:33] As a law firm, we’re going to be covering some areas in our newsletter, Constant Contact. If you have any questions or concerns, please feel free to email me directly, stuart@obermanlaw.com. You can certainly request that we schedule consults. You could certainly request that you be put on our newsletter. We’re trying to be out as a law firm out in front of this because we see where things are going. We have clients in Spokane, Washington, in Tampa, Florida, and up to Maine. So, we’ve got a pretty good idea where these things are going.

Stuart Oberman: [00:12:11] So, mandates, non-mandates, have a procedure in place. Folks, that is all for today. We’re going to go back, and we’re going to jump into two segments that are going to be following regarding COVID-19, because it is just that much of a serious issue that we need to address. Have a great day and thank you everyone for listening.