Tag: COVID-19

FAQs Spell Out Employer-Sponsored Health Plan Requirements for Reimbursing Over the Counter COVID Tests Effective as of January 15, 2022

Effective January 15, 2022, employer-sponsored group health plans and health insurers are required to provide reimbursement to plan participants, or to provide coverage to plan participants, for over-the-counter (“OTC”) COVID-19 self-tests. No cost sharing (such as deductibles), prior authorization or other medical management requirements can apply.

These and other explanations of coverage requirements for OTC COVID-19 testing are addressed in guidance issued in a “Frequently Asked Questions” format on January 10, 2022. The FAQs were prepared jointly by the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the “Departments”) regarding implementation of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and the Affordable Care Act.

Some of the important issues addressed in the FAQs include the following:

  • A plan or insurer is not required to provide coverage by reimbursing sellers of OTC COVID-19 tests directly (i.e., direct coverage). Instead it may require a participant, beneficiary, or enrollee to submit a claim for reimbursement to the plan or insurer. However, the FAQs state that plans and insurers are strongly encouraged to provide direct coverage for OTC COVID-19 tests without requiring participants, beneficiaries, or enrollees to provide upfront payment and seek reimbursement.
  • To the extent a plan or insurer provides direct coverage for tests, it may not limit coverage to only tests that are provided through preferred pharmacies or other retailers, and must take reasonable steps to ensure that participants have adequate access to tests through an adequate number of retail locations (including in-person and online locations).
  • Reimbursement of tests from non-preferred pharmacies or other retailers may be limited to no less than the actual price, or $12 per test (whichever is lower); however plans and insurers may elect to provide more generous reimbursement up to the actual price of the test.
  • A plan or insurer may limit the number of tests covered to no less than 8 tests per 30-day period.
  • Plans and insurers are permitted to address suspected fraud and abuse. The FAQs state, for example, that a plan or insurer may require (i) an attestation that the OTC COVID-19 test was purchased by the participant for personal use, not for employment purposes, and (ii) reasonable documentation (such as a UPC code) of proof of purchase with a claim for reimbursement.

The Centers for Medicare and Medicaid Services also issued a set of FAQs on January 10, 2022, explaining to consumers “How to get your At-Home Over-The-Counter COVID-19 Test for Free.”

We will continue to keep you updated regarding new developments on these issues. Given the nationwide lack of availability of tests, and many insurers indicating that they cannot meet the January 15 deadline, it may be a rocky start for this program.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Brian T. Gallagher is an attorney at Fraser Trebilcock specializing in ERISA, Employee Benefits, and Deferred and Executive Compensation. He can be reached at (517) 377-0886 or bgallagher@fraserlawfirm.com.

Lauren  D.  Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

COVID Updates – Is My Workplace a “Public Indoor Setting” According to the CDC’s New Mask Guidelines?

If there is anything we’ve learned about COVID-19’s impact on businesses over the last 18 months, it’s that change is the only constant. Changes in economic conditions, variants of the virus, and shifts in workplace guidance from government agencies have all required business leaders to study the issues and best practices, and make the best decisions for their organizations.

With COVID numbers on the rise, reportedly due to the “Delta” variant, businesses are again confronted with making decisions about mask-wearing policies in the workplace. Masking is back at the forefront of discussion following July 27, 2021, revised guidance from the Centers for Disease Control and Prevention (“CDC”) recommending that even fully vaccinated individuals should resume wearing masks in “public indoor settings” in areas of the U.S. that have “substantial” or “high” COVID-19 transmission rates.

It was only a few months ago, in May, 2021, that we reported CDC guidance that fully vaccinated individuals could stop wearing masks and discontinue physical distancing in most settings, except in hospitals, on public transit or in other specified places.

What this Means for Businesses

It is important to note that the CDC’s new recommendation regarding mask-wearing is not a mandate. However, many businesses have chosen to base their COVID-19 workplace safety policies during the pandemic on the CDC’s guidance. Accordingly, for businesses that intend to follow the revised guidance, it’s important to understand the meaning of certain terms used therein in order to implement appropriate policies.

The revised guidance does not define the meaning of “public indoor settings” where it recommends masks be worn. However, the CDC has previously distinguished public settings from private household settings. Because the CDC’s guidance is not a mandate, businesses evaluating workplace policies should consider their particular circumstances, including issues such as the size of their workforce located within an indoor setting, local rates of transmission, and the percentage of workers vaccinated, among other factors.

The revised guidance does define the term “substantial or high transmission rates.” It refers to two metrics, considered separately:

  • the rate of new COVID-19 cases per 100,000 people; and,
  • the positivity rate.

Both CDC metrics are based on measurements looking back in time over the preceding seven days.

“Substantial” transmission is defined as 10-50 cases per 100,000 residents or a positivity rate between 5-8 percent.

“High” transmission is 100 or more cases per 100,000 or a positivity rate of 10 percent or higher.

 The CDC has created a COVID-tracker map that can be viewed to determine transmission rates by county. In Michigan, as of August 11, 2021, a majority of counties have substantial or high transmission rates.

We recommend that businesses continue to monitor federal, state and local guidelines and/or mandates in order to evaluate and implement appropriate workplace safety policies. If you have any questions, or require assistance, please contact please contact Dave Houston or your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

7th Circuit Rules in Favor of Indiana University’s COVID-19 Vaccine Requirement for Students

With the current increase of hospitalizations, the influx of the Delta variant in the United States and the low level of vaccinations in certain regions of the United States, universities and other higher education institutions are faced with a dilemma: Can these institutions make COVID-19 vaccinations mandatory for students?

It is an issue with complicated layers, and the evolving nature of COVID-19 doesn’t make it easy to arrive at a single consensus. Virginia Tech announced that it doesn’t believe it is legally authorized to require COVID-19 vaccinations for its students since the FDA has approved vaccines only for emergency use.

While Virginia Tech isn’t requiring vaccinations, according to the Chronicle of Higher Education, as of August 2021, at least 645 colleges are requiring students to receive the COVID-19 vaccination as a prerequisite to attend classes on campus. Other higher institutions have followed suit. University of Michigan, Michigan State University and Wayne State University all recently announced vaccine mandates.

Not surprisingly, vaccine mandates by universities have been challenged in the courts. And in a recent ruling, the U.S. Court of Appeals for the Seventh Circuit, in Klaassen v. Trustees of Indiana Univ., upheld Indiana University’s right to mandate vaccines for students returning to campus. The ruling denied a request for an injunction pending appeal of a federal district court’s ruling in favor of Indiana University.

The Seventh Circuit cited U.S. Supreme Court case Jacobsen v. Massachusetts as a precedent for its ruling. In Jacobsen, the Court held that a state may require all members of the public to be vaccinated for smallpox. Based on this ruling, the Seventh Circuit stated that there can’t be a constitutional issue with institutions requiring students to receive the COVID-19 vaccine.

The Jacobsen case didn’t allow for an exemption for adults, which is different from Indiana University’s policy on COVID-19 vaccines. The university allows exceptions for those students who declare vaccinations incompatible for religious beliefs and for those individuals for whom vaccines are medically contraindicated. Those exempt individuals are required to wear a mask and get tested. The Seventh Circuit did not view this as a constitutional problem.

The last distinction the Seventh Circuit made is that Indiana does not require every person in the state to be vaccinated, as was the case in Jacobsen. Those students who don’t want to comply with Indiana University’s vaccination requirement can simply attend an institution that doesn’t have this requirement. The court stated, “Each university may decide what is necessary to keep other students safe in a congregate setting. .  . Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at the university close contact is inevitable.”

In addition, since universities can already require surrendering property (i.e., payment of tuition) or requiring students to read or write about certain things (i.e., assignments by a professor), it was “hard to see a greater problem with medical conditions that help all students remain safe while learning.” The Seventh Circuit explained that it would be too difficult to learn if other students felt the spread of disease was imminent.

Indiana University can’t require students, faculty or staff to provide documentation that they received the vaccine since the attorney general of Indiana stated it would violate a new state law banning immunization passports. Instead, individuals would sign an attestation statement certifying they received the vaccine. Lying about vaccine status on this form may result in a punishment.

This case isn’t the final word on the issue. Plaintiff’s lawyer has indicated he plans to appeal the ruling to the Supreme Court. The landscape and terrain on requiring vaccines at higher institutions is subject to the evolving nature of COVID-19 and the responsibility of universities to offer the best learning environment and most importantly, a safe place for students.

If you have any questions about this recent ruling, or vaccine policy issues in higher education more generally, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

COVID Updates – Long COVID May Qualify as an ADA Disability

President Biden announced on July 26 that Americans experiencing “long COVID-19” symptoms may qualify as having a disability under the Americans with Disabilities Act (“ADA”), based on guidance issued jointly by the U.S. Department of Justice (“DOJ”) and the U.S. Department of Health and Human Services (“HHS”). With COVID-19 cases rising 64 percent week-over-week as of August 4, and more attention being paid to the long-term ramifications of the disease, this is an issue that could affect many employers.

Long (or long-haul) COVID refers to a prolonged illness experienced by someone who caught the virus but continues to have symptoms weeks or months following the initial diagnosis. Scientists are still studying why some people are more vulnerable to long COVID than others. Typical symptoms include breathlessness, fatigue, memory loss and a general sense of “brain fog,” although persistent symptoms lasting for months can be vague, even for those who initially were asymptomatic.

The guidance from the DOJ and HHS explains that long COVID can be a disability under the ADA, which prohibits discrimination against, and requires reasonable accommodation for, qualified individuals with disabilities. However, the agencies emphasized that an “individualized assessment is necessary to determine whether a person’s long COVID condition or any of its symptoms” limits their ability to work.

It is important to note that President Biden’s statement and agencies’ guidance do not carry the weight of law. The practical implication of the guidance for employers is to raise awareness that they may have to provide paid time off, benefits and reasonable accommodations (such as the ability to work remotely or other flexible work arrangements) for employees who are suffering from long COVID symptoms. Reviewing and making adjustments to existing policies in light of this guidance may be appropriate. Please contact us for additional information and assistance.

Given the fluid nature of COVID-19’s impact, we will continue to provide employer-updates on important issues, including legislative and regulatory changes at both the federal and state levels.

If you have questions about this issue, please contact Aaron Davis or your Fraser Trebilcock attorney.

Aaron L. Davis is Shareholder and Chair of Fraser Trebilcock’s labor law practice. You can reach him at adavis@fraserlawfirm.com or (517) 377-0822. 

CDC Enters a “Round 2” Modified Eviction Moratorium

Effective August 3, 2021, the Centers for Disease Control and Prevention (“CDC”) issued a second eviction moratorium that, by its terms, is effective August 3 through October 3, 2021. The text of the order can be found here.

Instead of a blanket eviction prohibition, as was in place with the CDC order that expired on August 1, this new order applies in areas with “substantial” or “high” rates of COVID-19 transmission. “Substantial” and “high” are defined within the order pursuant to a numerical formula, and the order states that it provides links to a CDC website that maintains county-by-county score cards that apply the formula. Popular media and commentators note that this qualifying rate requires 50 COVID-19 cases per 100,000 people over a seven day period. They also note that, according to the CDC, about 80 percent of US counties are currently experiencing these rates. If a county falls below the required rate for 14 days the moratorium does not apply, but if the rate goes back up to this level, it does. This would likely result in eviction proceedings starting then being stayed, depending on conditions, and may initiate some races to the courthouse, as the saying goes.

The general prohibition provides that: one “with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels” of COVID-19 transmission.

To be a “covered person” a tenant must: declare, under penalty of perjury, to various circumstances. Those declarations, quoted in part and paraphrased in part, are that:

  1. The individual has used best efforts to obtain all available governmental assistance for rent or housing;
  2. The individual income qualifies (basically, the individual received a stimulus check);
  3. The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay­ off, or extraordinary out-of-pocket medical expenses;
  4. The individual is using best efforts to make timely partial rent payments that are as close to the full rent payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
  5. Eviction would likely render the individual homeless—or force the individual to move into and reside in close quarters in a new congregate or shared living setting ­ because the individual has no other available housing options; and
  6. The individual resides in a U.S. county experiencing substantial or high rates of transmission of COVID-19 (pursuant to the formula).

A standardized CDC form is supposed to be available through the CDC, pursuant to the new order, but at the time of publication, the link to that form was dead. It just led to a page stating that the moratorium had expired. This may change in the future, however. That link is here.

Other important aspects of the new order to consider include the fact that the new  moratorium is in its infancy and there is no indication on how courts will treat various aspects of it. In particular, “[t]his Order does not preclude a landlord challenging the truthfulness of a tenant’s, lessee’s, or resident’s declaration in court, as permitted under state or local law.” However, “[a]s long as the information in a previously signed declaration submitted under a previous order remains truthful and accurate, covered persons do not need to submit a new declaration under this Order.”

Like the prior version, the new moratorium does not cancel the tenant debt. Tenants can still be evicted for other breaches of the lease and, the author would argue, when a lease expires. If a tenant has COVID they cannot be evicted, but they can be evicted if they engage in criminal activity, threaten others (but being sick with COVID-19 itself is not deemed a threat to others), damage property or pose an immediate risk of damaging property, or violate ordinances or building codes.

On June 29, 2021, in the case of Alabama Association of Realtors® v. US Department of Health and Human Services, four justices voted to hear an appeal of a stay order entered by a District Court that held that the initial moratorium exceeded the CDC’s authority. Justice Kavanaugh, who concurred with the 5-vote majority to allow the CDC moratorium to remain in place, wrote: “I agree with the District Court and the applicants [the Alabama Association Plaintiffs] that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.”  But, he concurred with the majority, and allowed the moratorium to stay in place because it was about to expire on July 31, and that the overall equities of the situation dictated that the moratorium should remain in place, albeit temporarily. Justice Kavanaugh further wrote that: “[i]n my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Thus, many Supreme Court watchers and commentators believe that our Supreme Court will hold such a moratorium invalid if it ever confronts the merits of the issue. As several federal courts found the prior moratorium unlawful, but never struck it nationwide based on various principles, we may again be confronted with a situation where the moratorium will expire before courts strike it down.

If you are a Michigan landlord seeking to navigate this current climate please contact Jared Roberts at Fraser Trebilcock.

Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared is Chair of the firm’s Real Estate department, and also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at jroberts@fraserlawfirm.com and (517) 482-0887.

COVID Updates — The Latest News for Employers

Despite hopes that the COVID-19 pandemic would be behind us by now, the emergence of the more transmissible Delta variant and consumer opposition to vaccination use are leading to resurgence of infections and infection rates. Those health events are, in turn, causing local, state and now the federal  government, governmental agencies, and employers, to revisit, and, in some instances, reinstate, workplace health and safety policies. Just as COVID health risks have not disappeared, so, too, Employers who do not remain compliant with changing rules are, or may become, exposed to liability or penalty.

While cases in Michigan remain relatively low, and the state government has indicated that no changes in policies are imminent, it’s important for employers to stay on top of the latest COVID-related developments. If we’ve learned anything over the last 16 months, it’s that we need to expect (and prepare for) the unexpected.

Can an employer mandate that its employees be vaccinated?

In May, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) confirmed advice we had provided (see, EEOC Issues New Guidance on Workplace Vaccine Policies – FraserTrebilcock Blog (fraserlawfirm.com) that an employer mandate is allowed with respect to COVID vaccines allowed under Emergency Use Authorization (“EUA”) by the FDA, subject to the limitations discussed in the next section. The EUA-authorized vaccines are those manufactured by Pfizer, Moderna and Johnson & Johnson. Additionally, the Department of Justice released a Memorandum of Opinion on July 6 indicating that federal law “does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject” to an EUA.

Many employers have already announced vaccine mandates in both the public and private sectors. President Biden announced on July 29 that all federal workers must be vaccinated for COVID-19 or be subject to strict testing measures. Some state (e.g., California) and municipal (e.g., New York City) governments have imposed similar requirements for their employees. In the private sector, beginning primarily with healthcare providers, but increasingly in non-healthcare, employers including Google, Morgan Stanley, Goldman Sachs and others are also requiring that employees be vaccinated.

What exceptions must be allowed if vaccines are mandated?

Employers may mandate vaccines as long as they comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity law considerations, including accommodations for medical or religious reasons. For more on the EEOC’s guidance regarding vaccines and reasonable accommodations, please reference our prior analysis of these issues.

Can employers ask their employees about their personal vaccination status?

Yes, but once that question is answered, employers should avoid inquiring about further medical information or history. We also covered this issue in our discussion of EEOC vaccine guidance. While federal guidelines require employers to provide a safe working condition, there is a risk that such a question, or any follow-up questions that relate to employee health, could be interpreted as a prohibited disability inquiry under ADA.

Can businesses ask their customers or clients about their personal vaccination status?

Neither state nor federal law restrict private businesses from asking for or requiring proof of vaccination to enter a store, office or other physical location of a business. Despite social media “memes” and misinformation recently circulating suggesting the opposite, inquiring about a customer’s vaccination status is not a HIPAA violation or a violation of constitutional rights.

Can employers require masks of employees while working onsite?

Generally, and subject again to worker disability law protections, employers have the legal right to require mask wearing onsite. There may be instances where a worker could refuse to wear a mask, such as if it negatively impacts job performance or safety, or he or she has a disability preventing mask use or a sincerely held religious belief. Employees who have a disability that interferes with their ability to wear a face mask may request a “reasonable accommodation” under ADA. Ford Motor Company recently announced that employees must start wearing masks again at plants in Missouri and Florida.

As cases continue to surge, more jurisdictions may begin mandating that employees wear masks. On July 27, the U.S. Centers for Disease Control and Prevention (“CDC”) issued guidance encouraging vaccinated individuals to begin wearing masks indoors in locations  where COVID-19 transmission is “substantial” or “high.” The CDC’s announcement is expressly not a mandate, but intended to serve as guidance. Governor Whitmer indicated shortly after the CDC’s recommendation came out that Michigan would not be implementing a mask mandate at this time.

If you have any questions or concerns about your business’ COVID-19-related policies and procedures, please contact Dave Houston or your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Michigan Legislature Repeals Emergency Powers of Governor Act of 1945

On July 21, 2021, the Michigan legislature approved a petition to repeal the Emergency Powers of Governor Act of 1945, which was the statutory basis used by Governor Whitmer during the early days of the COVID-19 pandemic to institute sweeping health and safety restrictions.

Because the action taken by the legislature was pursuant to an “initiated law,” the repeal does not require Governor Whitmer’s approval, nor can she veto it.

Under Article II §9 of the Michigan Constitution, citizens can put an initiative on the ballot if they gather a certain number of signatures — at least eight percent of the total number of votes cast in the last gubernatorial race. Before an initiative reaches the ballot, the Michigan legislature can, as it did in this instance, pass the proposed law with a simple majority vote in each chamber, and such a measure approved in this manner cannot be vetoed.

Governor Whitmer’s use of the Emergency Powers of Governor Act, which involved ordering lockdowns, mask mandates, and cancellation of youth sports, among other things, has been the subject of considerable controversy throughout the COVID-19 pandemic.

Petition organizers from a group called Unlock Michigan began collecting signatures for the repeal effort in the Spring of 2020, and turned in petitions with more than the required 340,000 signatures to the Michigan Secretary of state in October, 2020.

The Michigan legislature previously approved legislation (through the conventional legislative process) that would have repealed the law, but Governor Whitmer vetoed it.

Court challenges were also raised, and in October, 2020, the Michigan Supreme Court ruled that the use of the Emergency Powers of the Governor Act to institute COVID-19 health and safety measures was unconstitutional.

Subsequently, the Michigan Department of Health and Human Services issued orders pursuant to its authority under the Public Health Code which reinstated many of the same health and safety measures that were invalidated by the court’s ruling. However, Unlock Michigan recently launched a new petition drive to change the Public Health Code to limit any emergency orders issued by the Michigan Department of Health and Human Services to 28 days without legislative approval.

If you have any questions about these issues, please contact Jean Kordenbrock or your Fraser Trebilcock attorney.

Jean E. Kordenbrock is an experienced legal professional and entrepreneur across a broad range of legal areas, business, and a diverse clientele. She has the unique quality of being a skilled attorney while also leading her own teams where outcomes combine legal, political, and business expertise. Jean can be reached at (517) 377-0824 or jkordenbrock@fraserlawfirm.com.

Michigan COVID-Related Capacity, Mask and Gatherings Restrictions Will be Lifted Beginning June 22

Governor Gretchen Whitmer announced on June 17, 2021 that COVID-related restrictions for capacity, masks and gatherings will be lifted effective June 22. Beginning June 22, capacity in both indoor and outdoor settings will increase to 100 percent and the state will no longer require residents to wear a face mask.

MDHHS Secretary Elizabeth Hertel’s “Rescission of Emergency Orders” provides that most COVID-related restrictions for capacity, masks and gatherings will be ended effective June 22.

The lifting of these restrictions was expected to take place on July 1. However, given that more than 9 million vaccines have been administered and COVID cases are plummeting in Michigan, the timeline has been accelerated.

In addition to the order regarding gatherings and masks, additional orders being rescinded as of June 22 include:

While state mandates on mask wearing are ending, it’s important to note that individual businesses may still require masks.

In addition, some orders will remain in effect to protect vulnerable populations in corrections, long-term care and agriculture. Certain public health measures also will continue for reporting requirements and COVID testing.

If you have any questions regarding how these developments affect your business or organization, please contact Dave Houston or your Fraser Trebilcock attorney.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

Can Employers Ask Their Employees if They Have Been Vaccinated?

One of the biggest challenges of the past year for employers has been keeping up with the complex and constantly evolving employment law issues that have arisen during the COVID-19 pandemic. The roll-out of COVID-19 vaccines has been a welcome relief for employers hoping to create safe and productive workplaces, but issues related to vaccines create a new set of questions.

One of the most common is whether employers can inquire about whether their employees have been vaccinated. Employers are wise to seek legal counsel regarding this issue, as any medical inquiry by an employer could give rise to legal risks. In this case, one of the main risks is that such an inquiry could be interpreted as a prohibited disability inquiry under the Americans with Disabilities Act (“ADA”).

As with most legal issues, this one is nuanced. The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued guidance stating that a mere inquiry of vaccination status does not constitute a disability-related inquiry under the ADA. The EEOC explains that there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Therefore, pursuant to the guidance, “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”

However, the guidance suggests that delving further into vaccination status may be problematic. For example, asking why an employee did not receive a vaccination may elicit information about a disability. Such follow-up questions could implicate the ADA and must be considered in light of the ADA’s framework that requires such inquiries to be “job-related and consistent with business necessity.”

The EEOC’s guidance on these issues is just that—guidance—and it is subject to change. As with any workplace policy, before establishing rules concerning vaccines, employers should consult legal counsel in order to understand their rights and responsibilities. If you have any questions about these issues, please contact Klint Kesto or your Fraser Trebilcock attorney.

Fraser Trebilcock attorney and former Michigan State Legislator Klint Kesto has nearly two decades of experience working in both the public and private sectors. You can reach him at kkesto@fraserlawfirm.com or 517.377.0868.

Can Higher Education Institutions Make COVID-19 Vaccinations Mandatory for Students?

On April 23, 2021, the University of Michigan announced that all students who choose to live on its Ann Arbor campus during the 2021 fall term will be required to be fully vaccinated for COVID-19. It’s not the first university to make such a pronouncement, and almost certainly will not be the last, which raises an interesting question: Can higher education institutions legally mandate vaccinations?

As with most complex legal issues, it is a nuanced one, and different schools have taken different stances. As of May 6, 2021, according to the Chronicle of Higher Education, 225 schools have made vaccinations mandatory. Others are leaving the decision to students. And Virginia Tech University announced that it does not believe that it has the legal authority to mandate that students be vaccinated.

While many higher education institutions have routinely required students to be vaccinated for viral diseases such as measles and mumps, the COVID-19 vaccines fall into a gray area. The difference—which is the issue cited by Virginia Tech in suggesting that it lacks authority for a mandate—is that the U.S. Food and Drug Administration has only allowed the emergency use of the COVID-19 vaccines and has not given them its full approval.

In some states, the vaccine decision is being directed by state governments. In states such Arizona, Idaho, Florida, Montana and Texas, governors have issued executive orders prohibiting government entities from requiring proof of COVID vaccination for access to buildings or services. However, the breadth and scope of such orders differs by state. Texas’ order, for example, is one of the broadest, in that it affects both public colleges and private colleges that receive state funding.

In Michigan, there is no similar executive order, but a Michigan House of Representatives version of a spending bill includes language prohibiting the state’s public universities from requiring COVID vaccines as a condition of enrollment or attendance.

It is also important to note that, even if a higher education institution mandates vaccinations, exemptions may apply. For instance, both public and private colleges and universities are subject to the requirements of the Americans with Disabilities Act (“ADA”). A student could potentially seek an accommodation from a requirement to take a vaccine on medical grounds, but a school’s obligations with respect to each such request—whether an accommodation is necessary and, if so, the extent of any such accommodation—must be evaluated on a case-by-case basis.

In short, this is a complex issue involving a number of considerations—from the legal and regulatory landscape to the political environment. That may explain why some higher education institutions, such as Wayne State University, have adopted a middle-ground position short of a mandate that involves offering students incentives for getting vaccinated. In April, Wayne State University announced that it would deposit $10 into the student account of any student who uploaded proof of vaccination by May 7.

If you have any questions regarding these issues, or require assistance in evaluating your institution’s COVID-19 vaccination program, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.