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COVID-19 update: Vaccination policies, claims, lawsuits, and presumptions


Vaccinations: employers taking varying approaches

COVID-19 has once again thrust employers into unfamiliar grounds as they have been left to figure vaccine requirements out on their own, absent sweeping directives from federal, state, or local governments. According to a recent Society for Human Resource Management (SHRM) article, research from law firm Littler Mendelson showed the number of employers that are currently mandating vaccines or planning to roll out some form of requirement has more than doubled from less than 10 percent in January to about 21 percent in August. Additionally, 46 percent of respondents were more strongly considering a vaccine mandate due to the delta variant and recent rise in cases. Only 22 percent say they have firmly decided not to issue a mandate.

While it is predominantly larger corporations in the healthcare, tech, financial, hospitality and entertainment, and transportation industries and government entities that have mandated the vaccine, Tyson Foods, which suffered serious COVID outbreaks at the beginning of the pandemic, became the largest manufacturer and food company to mandate the vaccine on August 3. Its corporate workforce needs to be vaccinated by Oct. 1, other employees that aren't represented by unions need to be vaccinated by November 1, and new hires must be fully vaccinated before they begin work. The company will also provide $200 to frontline team members who get the shot. Lastique International Corp., a Kentucky-based raw plastics distributor and recycler, implemented a zero-tolerance policy about the COVID-19 vaccine for all workers and new hires.

Some cities, such as New York City and San Francisco, have begun to take a more aggressive stance. NYC's Key to NYC Pass requires employees and patrons of indoor dining facilities, indoor fitness facilities, and indoor entertainment facilities to prove they have received at least one dose of the vaccine as a condition of entry.

Short of vaccine mandates for all employees here are some of the other approaches employers are taking:

While 11 states have banned vaccine mandates, Montana's law is the only one that applies directly to employees of private businesses. The laws don't prevent officials from encouraging vaccinations, only from requiring them. The increased risk of exposure in healthcare is recognized as some states allow exemptions to the ban for healthcare organizations. The federal government is requiring employees at nursing homes to be vaccinated against COVID-19 as a condition of the facilities participating in the Medicare and Medicaid government health care programs. And some states, including California, New York, Maine, Maryland, and Rhode Island, are requiring personnel at nursing homes, hospitals, and other health care congregate facilities to get the coronavirus vaccine or submit to regular testing.

While from a legal perspective, the Food and Drug Administration granting of full federal approval of the Pfizer-BioNTech vaccine for those 16 and older did not change much, many legal experts say it will nearly be impossible to successfully challenge mandates and may tip the scales toward mandates. Many of the lawsuits over mandatory vaccinations, including the highly publicized, Jennifer Bridges, et al. v. Houston Methodist et. al, were based on the argument that the vaccines are experimental because they only have emergency use authorization and therefore can't be mandated. Following the dismissal of the Houston Methodist case, more than 150 employees resigned or were fired.

In the first vaccine mandate case to reach the US Supreme Court, the court denied review of Indiana University's COVID-19 vaccine mandate for employees and students, leaving in place the rulings of lower courts in favor of the university's requirements.

There's no doubt that the decision is a complicated one. According to Littler's research, the main concerns employers have regarding vaccine mandates include resistance from employees, the potential impact on company culture and employee morale, and the possibility of losing employees in a tight labor market. It's an employment relations issue that requires understanding workforce sentiment, thoughtful consideration of the impact on the health and safety of workers, evaluating industry trends, adherence to local and state laws, changes in infection rates, and alternative ways to address and remove obstacles to vaccination.

Employers that do decide to mandate need to consider religious and disability-related objections and explore reasonable accommodations. While there has been more guidance from the EEOC on disability-related objections, it does note that "employers should also generally assume that an employee's professed religious belief is sincere and only question their belief if there is an objective basis to do so." If it is a unionized workplace, a vaccination program will likely be subject to collective bargaining. Employers must also establish a verification process that is consistent, equitable, and manageable.



Claims

Most claims continue to be indemnity only, with about 73% without a medical component. According to a report by Mitchell International Inc., $1,380 is the average indemnity cost for COVID-19 claims and $7,766 is the average COVID-19 medical cost. In California, which has a presumption that allows workers to file virus-related claims under certain conditions, 151,068 workers have filed COVID-19-related claims since the start of the pandemic, with 1,046 workers dying of the disease. Health care workers make up most at 30.8%; public safety workers comprise 17.6%.

In Minnesota, the COVID-19 presumption covering healthcare workers, paramedics, firefighters, police, correctional officers, and childcare workers played a large role in approved claims. Nearly 85% of the 20,863 workers' compensation claims for COVID-19 came from those covered by the presumption according to a report by the state Department of Labor and Industry. Moreover, COVID claims filed by workers not covered by the presumption were about five times more likely to be denied. All claims from the meat processing industry (978) were denied.

Claims are rising again in Florida, with 1,454 claims reported in July, up from 634 in June. Overall, employers in Florida have paid $49 million in COVID-19 comp claims, averaging $3,040 per claim. As of August 1, in Texas, insurers had reported 50,460 COVID-19 claims and 269 fatalities to the Department of Workers' Compensation since March 2020. Sixty-five percent of the claims and fatalities involved health care workers, social workers, first responders and correctional officers. Insurers denied 14,000 COVID-19 claims with positive tests or diagnoses but there had only been 112 disputes filed as of Aug. 1. From Dec. 15, 2020 through Aug. 1, 2021 insurers reported 513 COVID-19 vaccine reaction claims to the state.

The wild card remains long-COVID cases, which could affect workers' compensation indefinitely. Patients require care from different practitioners and costs go well beyond the initial hospitalization and treatment.



Lawsuits

In late 2020 and early 2021, about 30 states instituted various degrees of liability protection designed to protect businesses from COVID-19 lawsuits. The number of cases has been less than many anticipated.

According to the Littler COVID-19 Labor & Employment tracker, since March 12, 2020, there have been 3,382 lawsuits (including 276 class actions) filed against employers due to alleged labor and employment violations related to the coronavirus. States with the most filings include California (974), New Jersey (350), Florida (246), New York (243), and Ohio (191). Industries with the most filings are healthcare (800 cases), manufacturing (410 cases), retail (307 cases), public administration (273 cases), and hospitality (246 cases).

In a highly publicized case, Amazon recently lost its bid to prevent the New York Attorney General from investigating how it protected warehouse workers. While it argued federal health and labor laws preempted the AG, a judge dismissed the case, noting the state has a legitimate interest in ensuring that employers are complying with state labor laws and enforcing important health safety measures.



Presumptions

This year, several states that enacted COVID-19 presumption legislation in 2020 took additional action to extend and/or expand those presumptions. Five states (Alaska, Illinois, Minnesota, Vermont, and Wyoming) have enacted legislation to date according to a legislative report by the National Council on Compensation Insurance (NCCI). Several other states considered establishing new workers' compensation presumptions for COVID-19 for certain workers. To date, 2 states (Texas and Virginia) have enacted new COVID-19 presumptions. Proposals are pending in California, Massachusetts, Michigan, Pennsylvania, but did not pass in Connecticut, Iowa, Maryland, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, and South Carolina.

Other proposed legislation relating to workers' comp and COVID-19 such as treating COVID-19 as an occupational disease and compensation for unvaccinated employees, met with mixed results. (see page 14 of report)

Of particular concern to many stakeholders, in 2021, several states proposed legislation to create workers' compensation presumptions that would stretch beyond the current COVID-19 pandemic and cover other infectious diseases. Two states have passed such presumptions, five states are still considering measures, and eight legislative efforts failed, according to the report. Signed into law on May 11 in Washington, S.B. 5190 provides health care workers with presumptive benefits during a public health emergency. Tennessee's S.B. 995, signed into law April 13, established a presumption for "emergency rescue workers for a virus or other communicable disease for which a pandemic has been declared by the World Health Organization or federal Centers for Disease Control and Prevention, and for which the governor has declared a state of emergency."

As of August, Alaska, California, Massachusetts, Michigan, and Pennsylvania are still considering measures that would make infectious diseases under certain conditions compensable under workers compensation.Such efforts failed in Florida, Iowa, Maine, Missouri, New Mexico, Rhode Island, and Texas, according to NCCI.