Can We Require Employees to Get Vaccinated for COVID-19?

Author: Amy G. McAndrew, Esq. - MidAtlantic Employers Association

Almost a year into the COVID-19 pandemic, there is a light at the end of the tunnel. Vaccinations began going into arms this week in the United States. As a result, many employers are asking whether they can make the COVID-19 vaccine mandatory for their employees. The answer is not clear and may depend on many factors. In making the best decision for your workplace, consider the following.

The ADA

Under the Americans with Disabilities Act (ADA) and corresponding state law, employers have the right to establish legitimate health and safety requirements that are job-related and consistent with business necessity. This may include immunization requirements in businesses that deal with the public. Healthcare organizations (hospitals, doctor’s offices, retirement communities, etc.) traditionally have required mandatory flu vaccines, and those same employers likely will mandate COVID-19 vaccines. Keep in mind that some employees will have legitimate reasons for refusing the vaccine, and employers must consider reasonable accommodation on the basis of disability and religion.

Availability

The Centers for Disease Control and Prevention (CDC) and state Departments of Health (DOH) have recommended that certain groups receive the vaccine first, and the vaccine likely will not be available to the general population until sometime next spring. An employer cannot mandate a vaccine that is not available to its employees.

Is the Workplace Unionized?

Workplaces with labor unions may have other considerations, such as whether the employer can issue a vaccine mandate without first bargaining with the union.

Safety Concerns

Even in non-union settings, employees have the right to engage in protected concerted activity under the National Labor Relations Act (NLRA), in addition to the right to protest unsafe working conditions. This could extend to vaccination requirements. For example, if employees band together to express safety concerns over the COVID-19 vaccine and refuse to be vaccinated, they may be protected under the NLRA as well as state and federal laws that prohibit retaliation for raising workplace safety concerns.

Are You Prepared to Terminate Employees Who Refuse Vaccination?

If the employer mandates the COVID-19 vaccine, it needs to be prepared to terminate employees who refuse vaccination. Particularly given the current economic climate, employers should consider whether they are willing to see talent walk out the door and expend the time, energy and money it will take to recruit, onboard and train replacements.

Do You Want to Be the Test Case?

Without a doubt, a number of employers will mandate the COVID-19 vaccine, and there likely will be legal challenges. One of the additional considerations, therefore, will be whether an employer wants to turn itself into a test case in the court system.

Given the above, an employer may want to consider a carrot rather than a stick approach to COVID-19 vaccination. This means making it as easy as possible for employees to get vaccinated by: educating employees about the importance and safety of the vaccine, using available CDC and DOH information; confirming insurance coverage and informing employees of the cost of getting vaccinated; once the vaccine becomes available to your workforce, explaining to employees where and when they can get vaccinated; and giving employees ample time (consider an hour of paid time) to get vaccinated.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding pandemic-related policies or practices. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.

Guidance provided by:

Amy G. McAndrew, Esquire

Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238

*This Alert is provided for general informational purposes only and does not constitute legal advice.

Health Insurance & The COVID-19 Vaccines

As we step closer to the availability of the vaccine to the general population, employer groups will be considering many variables for their employees, including the availability of the vaccine, how their workforce fits into the phased rollout, vaccine costs, and what can be done now to prepare. In an effort to help local organization navigate these topics within the framework of their employer-sponsored medical plans, the Capstone Benefits Team has consolidated the most recent guidance being provided by the largest health insurers in our area:

Independence Blue Cross:

IBX does not specifically address how the plans will cover vaccinations, however the federal government has committed to providing the vaccine itself to the American public at no cost)

Click to Read More: IBX COVID Vaccine Update

Aetna:

• Aetna will cover the cost of COVID-19 vaccines and their administration without cost sharing for Aetna members in all plans. Our coverage aligns with requirements in the CARES Act and the recent federal regulation. The requirement also applies to self-insured plans.

• COVID-19 vaccinations will be available at pharmacies, including CVS, as well as doctors’ offices at other clinical sites of care. HHS recently announced a federal government partnership with large pharmacy chains and community pharmacies to access and administer COVID-19 vaccines as they become available.

Click to Read More: Aetna Vaccine FAQs

Cigna:

• Will the vaccine be considered a preventive service waiving cost share for an employer’s workforce?

  • Any vaccine that receives FDA approval and is recommended by CDC (in partnership with guidance from ACIP), will be covered as a preventive service.

• Will my health plan with Cigna cover the cost of a COVID-19 vaccine?

  • The vaccine will be covered as a preventive service. Initially, the cost of the vaccine serum will be paid by the government. We expect that providers’ charges for administering the vaccine will be paid under your Cigna medical plan, the same as any other immunization administration charge. We also expect that members enrolled in plans that cover preventive services at 100% will incur no additional cost.

 Click to Read More: Cigna - Understanding COVID19 Vaccines

United Healthcare:

• When COVID-19 vaccines are authorized by the FDA, members will have $0 cost-share (copayment, coinsurance or deductible), no matter where they get a vaccine, including when two doses are required, as outlined below:

• Employer and Individual health plans: Members will have $0 cost-share at both in- and out-of-network providers through the national public health emergency period. This applies to fully insured and self-funded commercial health plans.

Click to Read More: UHC Preparing for COVID-10 Vaccine Authorization

For more information or company-specific questions, please contact Sr. VP of Benefits, Joseph Fox:

Email: jtfox@capstoneinsgroup.com

Update: Workers Compensation Coverage for COVID-19

The COVID-19 pandemic has brought the discussion of “presumption laws” to the forefront, as states examine whether workers’ compensation should cover workers if they contract COVID-19 on the job.

What is a “presumption law”?

A presumption law describes the conditions where an employee injury is presumed to have happened on the job and should be compensable under workers compensation coverage. The burden of proof for most work-related injuries typically rests on the injured worker. However, under presumption laws, the burden falls on the employer.

What is changing due to COVID-19?

A key exclusion for nearly all presumption laws in the past is that they have not covered infectious diseases, since proving that a person was infected on the job is typically very difficult. With so many frontline healthcare and other essential workers infected with COVID-19, many states are moving to add the infectious disease to their list of presumptions, especially for certain occupations.

State Updates: (As of 10/10/20)

• California (CA) - Recently passed legislation establishes a rebuttable presumption that all employees who are diagnosed with COVID-19 acquired the illness at work. Updated guidance now requires CA employers to report all COVID-19 employee incidents to their workers’ compensation carrier, regardless of occupation. Employers who fail to report “may be subject to civil penalties of up to $10,000.”

  Updated FAQ: Workers’ Compensation Presumption (SB 1159) Frequently Asked Questions

• New Jersey (NJ) - Recently passed legislation dramatically expands access to workers’ compensation benefits for “essential workers” infected with COVID-19. Retroactive to March 9, 2020, COVID-19-positive workers in New Jersey who qualify as “essential employees” are now entitled to a rebuttable presumption that the employee’s infection is causally related to the employee’s employment, so long as the infected individuals worked somewhere other than their own residence at the time of infection.

Other states with updated WC guidance addressing COVID-19 :

• Alaska, Arkansas, California, Connecticut, Florida, Illinois, Kentucky, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North Dakota, Utah, Vermont, Wisconsin

States with legislation still pending:

• Massachusetts, Michigan, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Virginia

If you have any questions regarding your obligations under these updated or proposed guidelines, please contact us:

Business Insurance: commercial@capstoneinsgroup.com

General: info@capstoneinsgroup.com

Home Office: 215-542-8030

Business Income & Interruption Insurance - What Now?

Business Income & Interruption Insurance - What Now?

Over the past month, it’s been made clear that commercial insurance policies as currently written provide little to no coverage to help reimburse businesses for lost income or a decline in sales due to the Coronavirus shutdowns. The “Business Income” or “Business Interruption” coverage found in commercial insurance policies seemed like a logical place to start. However, in nearly all instances, these commercial property coverage provisions are only triggered by “direct physical damage” to property.  Another hurdle for policyholders hoping to obtain claims dollars from their commercial policies are the common “Exclusion for Loss Due to Virus or Bacteria” endorsements. This has been a grim and frustrating reality for business owners and leaders across the country. But the fight is far from over. The sections below provide an update of issues, ongoing efforts, and our professional guidance for navigating these uncharted waters.

The American Property and Casualty Insurance Association (APCIA) estimates that the closure of small businesses is resulting in losses of approximately $431 billion per month. Given the substantial amount of dollars involved, it’s no surprise that attorneys and lobbying groups are confronting the issue head-on. Early this week, Pennsylvania joined a host of other states including New York, New Jersey, Massachusetts and Louisiana in introducing a bill that would force insurers to retroactively cover business interruption claims for small businesses (under 100 full-time employees). This move comes as insurance carriers are maintaining their stance that mandated coverage for the pandemic would threaten the solvency and stability of the entire insurance industry, as current premium volumes pale in comparison to the estimated monthly losses tied to this pandemic as projected above by the APCIA.

There are several other ideas and proposals currently being brought to the table in addition to the state-specific efforts that would force insurers to pay claims. These include:

• Federal Backstop - The introduction of a Federal backstop program similar to the Terrorism Risk Insurance Act (TRIA), which would provide a transparent system of shared public and private compensation for insured losses resulting from a pandemic, as opposed to acts of terrorism. This approach may be more palatable to insurance companies if they know they are sharing in the financial responsibility to pay claims.

• State Legislation - In addition to Pennsylvania’s recent introduction of House Bill 2372, which would mandate insurers to pay claims, PA legislators also introduced House Bill 2386, which would issue emergency grants to businesses that have had a business interruption claim denied by insurers. This is an interesting tie-in to the small business relief provisions found in the CARES Act and an avenue that could potentially be explored at the Federal level in additional stimulus measures.

• Relief Fund - The establishment of a massive relief fund in the mold of the 9/11 victim’s compensation fund. The fund would be overseen by a court-appointed official and the claims would be administered by a carefully selected panel of individuals from varying backgrounds.

• Litigation - Insurers are bracing themselves for lawsuits being brought against them from all angles. These suits will undoubtedly result in new case law that will impact future rulings as well as insurance guidance moving forward.

• Emerging Coverages – The Insurance Services Office, Inc. (ISO) is widely considered as the leading source of statistical and underwriting information for the Property & Casualty industry. In response to COVID-19, ISO has created two new business income endorsements that could be the model for providing coverage to businesses in response to future pandemics, if they are first adopted by individual carriers. These endorsements would not provide coverage for the current outbreak, but is one example of the many changes we expect to see in our industry as a result of the COVID-19 pandemic.

• Additional Stimulus - The potential for a “Phase 4” stimulus package that would include additional relief for businesses and may further address the items mentioned above.

While insurers have been digging their feet in on many fronts, they have been accommodating in other areas. Most of the largest Property & Casualty insurers have announced extended grace periods, more flexible payment schedules, and the waiving of fees and cancellation notices for nonpayment. Some are also loosening up underwriting guidelines to provide coverage for incidental exposures that arise from pivoting business models, such as curb-side pickups and the use of personal vehicles for delivery.  More recently, we are seeing some personal auto insurers stepping up to reimburse their policyholders directly for the overall reduction on auto-related claims being reported to the sharp decline of drivers on the road.

Summary of Guidance:

Capstone is committed to providing real-time guidance during this evolving crisis. While our initial interpretation of common insurance policy language still stands true today, the extended timeline of the shutdown and increasing scale of damages continues to open doors to alternative outcomes that will undoubtedly impact our recommendations to business owners, executives, and nonprofit leaders.

If your business has experienced or is currently experiencing a financial loss, directly or indirectly related to the pandemic, we recommend you speak to your insurance advisors about submitting a claim. In most instances, these claims will be denied immediately. However, as we’re seeing from the bills being introduced especially here in PA, legislators are hoping to either reverse those decisions or provide additional relief to businesses that have already been denied.

If your business is currently unable to pay monthly insurance premiums, we recommend you speak to your insurance advisors to discuss payment flexibility options that may be available to you. Our insurance carrier partners are considering these options on a case-by-case basis.

For regularly updated information on these topics, please visit our COVID-19 Resource Center.

If you have any additional questions, please reach out to a member of our team directly, call our primary office number or send us an email to our general inbox below.

Contact: Capstone Group

www.capstoneinsgroup.com

info@capstoneinsgroup.com

8 Spring House Innovation Park, Suite 202, Lower Gwynedd, PA, 19002

P: 215-542-8030

F: 215-542-8080