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Gallagher Sharp Is Pleased To Announce Maia E. Jerin As Its Newest Partner

(FEBRUARY 2021) - Maia represents clients in complex commercial and professional liability disputes, with a particular emphasis on legal and real estate professional liability.  She is actively involved in the firm’s legal malpractice and attorney discipline practice, where she represents small practitioners to large law firms.  She also defends businesses, employers, and managers against claims of discrimination and ADA violations in state and federal courts and before administrative agencies. She is a frequent presenter on a variety of legal ethics topics, focusing often on the use of technology in the law.

Prior to her legal career, Maia was a real estate sales and marketing executive in Naples, Florida, giving her a unique perspective and knowledge base when handling complex claims. Maia leverages this background in defending real estate professionals and brokers in civil litigation, administrative, and disciplinary matters. - (Gallagher Sharp)

 

Jeannine Davanzo and Krystina Maola obtain Summary Judgment in Products Liability case in Kings County

(FEBRUARY 4, 2021) - Following six years of contentious litigation, Jeannine Davanzo and Krystina Maola, obtain summary judgment in favor of GVK's client, a healthcare products manufacturer, in a products liability and negligence lawsuit filed in Kings County, New York. The plaintiff alleged that he sustained injuries after he slipped and fell on water he claimed was emanating from the client's ultrasonic cleaner during his employment at a hospital. The cleaner had undergone routine preventative maintenance pursuant to a contract with the plaintiff's employer approximately one month prior to the plaintiff's alleged accident, which showed no water leaking or other issues.

The plaintiff testified that while performing his work, he would spill or drip water onto the floor. He also testified that the water that allegedly caused his accident could have originated from other cleaners and/or sinks in the room where he worked. Additionally, the plaintiff admitted that he had seen water on the floor on multiple occasions prior to his accident and would mop it himself and report it to his supervisor, neither of which he did on the date of his accident.

GVK's attorneys moved for summary judgment on several grounds, including that plaintiff could not establish the client's product was defective in any way and that the client did not owe a duty to the plaintiff as a non-contracting third party, negating the required element for a negligence claim. In opposition, the plaintiff argued that the manufacturer of the cleaner owed a duty to him under the exceptions set forth in Espinal v. Melville Contrs., 90 N.Y.2d 136 (2002).

The court rejected the plaintiff's argument, determining that there was no proof in the record to support the plaintiff's products liability claim. The court also determined that the plaintiff's negligence claim failed because the plaintiff did not allege any of the exceptions pursuant to Espinal that might give rise to a duty to plaintiff on the part of the manufacturer of the cleaner in his pleadings. The first time the plaintiff raised any of these arguments was in opposition to the motion for summary judgment. The court further agreed with defendant that since the plaintiff did not plead the exceptions in his Complaint or Bill of Particulars as required, dismissal of the Complaint was appropriate. The case was dismissed in its entirety and plaintiff has not appealed. - (Gallow Vitucci Klar LLP)

 

“There’s a Shot for That” : What Employers Need to Know About Mandatory Vaccination Requirement During and After the COVID-19 Pandemic

Disease prevention is a privilege of modern life in a technologically advanced society.  Illnesses that took thousands of lives annually in the early twentieth century, are virtually unheard of today. As a result of the development and implementation of vaccinations, diseases like rubella, smallpox and whooping cough (pertussis) are rarely seen and have even been considered eradicated in some area across the globe. For example, the US Centers for Disease Control and Prevention reported 15,609 cases of whooping cough in 2018, compared to 265,269 cases of whooping cough and related deaths reported in 1934.[1]  Notably, the lowest incidence of whooping cough was in the late 1970s and early 1980s, with numbers beginning to rise, most notably in the past ten years as a small but vocal anti-vaccination movement began to grow, pushing back against requirements for vaccination long implemented in schools and certain workplaces.   

In the midst of this, the role that vaccinations play in disease prevention and control became of critical importance with the COVID-19 pandemic.  In March 2020, out of concerns over rapid spread of the COVID-19 virus, governments in both the United States and internationally began to implement restrictions on person-to-person interaction in an effort to slow the virus and minimize disease rates and casualties of the virus.  This had a sweeping and significant impact on businesses, requiring some businesses to transition to remote operations to prevent spread, others having to implement protective measures to continue essential operations, and yet other businesses closing, either temporarily or permanently, in response to concerns over exposure risk. 

Quickly, efforts began to develop a vaccination that would immunize individuals against COVID-19 and make the disease manageable enough to allow people to return to (relatively) normal operations. On January 26, 2021, newly elected President Joseph Biden pledged that there would be sufficient vaccinations for 300 million Americans by the end of the summer of 2021.[2]  

At the time of writing, the U.S. Food & Drug Administration has approved two vaccines for emergency use in adults; the Pfizer-BioNTech COVID Vaccine and the Moderna COVID-19 Vaccine.  Both are a two-dosage series, meaning that recipients receive one injection, and then three weeks (Pfizer) or a month (Moderna) later, another injection.[3]   Other brand vaccinations are still in clinical trials, including vaccinations produced by AstraZeneca, Johnson & Johnson (Janssen) and Novavax. 

The Centers for Disease Control has recommended that healthcare personnel and residents in long-term care facilities be the first to receive the vaccinations.  As more doses of the vaccination become available, other high-risk groups will be eligible for vaccination and eventually the general public. Rollout of the vaccinations has been largely inconsistent and problematic in many locations in the United States, with procedures and availability varying from state-to-state. As it currently stands, the demand for COVID-19 vaccinations far outweighs the available supply, and tensions are high, with people jockeying to see who the next groups of individuals will be to receive the vaccine, and some states turning to a “lottery” type system.   

As vaccinations become more available, whether employers can require mandatory vaccination of workers as a condition of employment will be of greater consideration, especially in certain industries, and as businesses which have been operating remotely begin to return to in-person operations.  Add to this the already existing anti-vaccination movement, an increase in anti-regulatory sentiment (especially in the wake of the last election), COVID “deniers” and generalized fear of side effects,[4] and employers seeking to implement mandatory requirements will need to tread carefully to ensure they do not expose themselves to potential liability in the context of employment claims.  

Vaccination in the Workplace Prior to COVID:

Considerations of whether to require vaccination of employees in the past, prior to COVID-19, was usually an industry-specific issue. State laws and guidelines were implemented in some jurisdictions, directed to specific kinds of work, such as healthcare workers and employees working in certain long-term care facilities. This included laws and regulations pertaining to diseases such as hepatitis-b, flu, measles, mumps, rubella, pertussis, pneumococcal disease and varicella.[5]  The Centers for Disease Control (“CDC”) also recommended that all U.S. healthcare workers get vaccinated for these diseases, including those that did not work directly in patient care, based on potential exposure to infectious agents.   

In many cases, workers may already possess immunity to many of these diseases due to childhood vaccination, required as a condition for attending public and private schools or other childcare facilities. Those who did not could avail themselves of vaccine programs available free-of-charge from employers and community programs, offered for the benefit not only of employees, but also for the benefit of the residents and patients who interact with care givers and even the general public with whom public safety personnel regularly interact.

Even prior to COVID, mandatory vaccinations were the norm (whether by state law or employer mandate) in the healthcare industry and many hospitals and nursing facilities required that employees obtain up-to-date vaccinations, including a flu-shot each season to protect workers and patients. In the five year period from 2015-2020, on average, 77-81% of healthcare personnel in the United States received a flu vaccine annually, including 93% of those working in a hospital setting.[6] 

However, outside of the healthcare industry and those other positions designed to work with a vulnerable population, workplace rules requiring vaccination have been relatively rare. In 2020, only 38.4% of the population age 18-49 years received a flu vaccination.[7]  

Courts have repeatedly upheld an employer’s right to require that employees receive vaccinations if they work directly with patients or if they handle materials that could spread infection. However, federal law, including the Americans with Disabilities Act (“ADA”), Title VII, and other constitutional protections may apply to limit an employer’s ability to issue such mandates, especially outside of a healthcare context. Exemption from such vaccination requirements is usually limited to medical contraindications or religions objections.  Workers who cannot tolerate vaccines or who possess allergies to vaccine ingredients, can be exempted but are generally required to wear protective equipment continuously while at work to compensate. 

However, the response to the COVID-19 pandemic is likely to be the first time that many non-healthcare employers will ever consider whether to require vaccinations of their employees.  In doing so, they will have to look to both established decisional law related to vaccination requirements for other diseases prior to COVID-19, in addition to guidance from the Equal Employment Opportunity Commission (“EEOC”), which continues to evolve in the face of this unprecedented pandemic.  Both existing discrimination laws pertaining to objections to mandatory vaccination requirements and the current EEOC guidance are discussed below.  

  1. A.     Medical Objections:

The ADA, as interpreted by the EEOC, offers insight into what employers can require without risk of liability and what employees must show to obtain an exemption from such requirements.  In general, an employer cannot demand a health screening or other disability-related information as a pre-condition of employment.[8]  Employers who make such inquiries, or who require health examinations, must first make an offer of employment before presenting such inquiries or requesting medical test results.[9]  Even then, if an employer uses the information obtained to screen applicants, such screening must be uniformly applied to all similarly-situated applicants, be based on the job requirements only, and serve a legitimate business necessity.[10]

Employers are also generally prohibited from requiring health examinations with respect to existing employees unless such request is necessary to: 1) determine an employee’s ongoing ability to perform job-related duties; 2) genuinely serves a business necessity; 3) is reasonably effective in achieving its business goal and 4) is no more intrusive that necessary.[11] Employers are also required to provide “reasonable accommodations" to employees with disabilities, unless they would result in an “undue hardship” or if the employee poses a “direct threat” to the health and safety of others.[12]

This could include an exception to a vaccination policy, or other accommodations such as allowing the employee to work remotely, allowing the employee to wear a mask in the workplace in lieu of vaccination, or adjusting their duties, workspace or hours to minimize risk of transmission. Where an employee seeks an exemption from mandatory vaccination based on their disabilities, the employee must provide medical documentation corroborating the disability.[13] 

Whether mandatory vaccination requirements can be imposed on an employee, or whether they are entitled to an exemption or accommodation from same, is a fact-based inquiry which can yield varying results. For example, in Ruggiero v. Mount Nittany Med. Center,[14] the Third Circuit reversed a decision issued by the District Court, which had dismissed a discrimination suit based on an alleged allergy disability and anxiety.  In the Ruggiero, the hospital where the plaintiff was employed required all clinical employees to obtain the “TDAP” (Tetanus, Diphtheria Pertussis) vaccine. Plaintiff sought an exemption based on medical reasons, providing a note from her physician that she was “medically exempt from receiving a TDAP immunization for medical concerns,” namely, “severe anxiety over the side effects of TDAP injection, especially with a history of food & environmental allergies and eosinophilic esophagitis.”  When the plaintiff failed to receive the TDAP injection by a date certain, she was discharged from employment.

            The District Court agreed with the plaintiff’s employer, who had argued that her doctor did not state that plaintiff suffered from any of the contraindications, warnings or precautions identified by the manufacturer of the TDAP vaccine, and found that the employer had engaged in the interactive process prior to terminating her employment. The Court further stated that, “Title VII does not mandate an employer or labor organization to accommodate what amounts to a "purely personal preference.”[15]

The Third Circuit reversed the district court decision, denying summary judgment on two significant points.  First, the court found that Plaintiff had suggested a possible accommodation—permission to wear a mask instead of receiving the vaccine—and  that that other employees were permitted to wear masks to accommodate their refusals to receive the flu vaccine.  The court indicated that this raised a question about possible non-uniform application of the employer’s vaccine requirement. 

Second, the Third Circuit held that the employer could not simply reject the plaintiff’s request for exemption based on the fact that her doctor did not specify that she fell within any contraindications to the vaccine,[16] and found that there was a plausible inference that the hospital failed to engage in the interactive process, or at very least, prematurely ceased the interactive process by refusing to engage in an “individualized inquiry.”  

In contrast with the Ruggiero decision, that same year, the Eighth Circuit issued its decision in Hustvet v. Allina Health System,[17] which upheld a mandatory vaccination requirement and where the court affirmed summary judgment in favor of the employer.   In that case, a health care employer announced a new screening for employees which included tracking of immunity to certain communicable diseases.  Plaintiff was unsure if she had been vaccinated against rubella and subsequent testing revealed she lacked immunity to it.  The employer informed her that she needed to develop immunity to rubella by taking one dose of a measles, mumps, rubella vaccine ("MMR vaccine"). Plaintiff refused the vaccine claiming, “many allergies and chemical sensitivities” for which she needed to limit her exposure.  She inquired about a rubella-only vaccine, which was not available.  After confirming that Plaintiff refused to become immunized, her employer deemed her to have voluntarily resigned her position. 

            The Eighth Circuit granted summary judgment in favor of the employer relative to her claims for failure to accommodate and retaliation.  The Court found there was a legitimate business interest and necessity in requiring employees with direct patient contact to show (or develop) immunity to rubella.   The Court found that the requested accommodation was not related to a claimed disability because Plaintiff failed to show that her “chemical sensitivities or allergies” limited her ability to perform her major life functions[18]. Specifically, the court noted that plaintiff had never sought medical attention for chemical insensitivity, taken prescription medication or been issued an EpiPen for allergies, or been hospitalized due to a reaction from a vaccine.  Lastly the Court found there was no basis for a retaliation claim because the Plaintiff was not terminated for requesting an exemption from the vaccination, but rather for failing to show immunity to rubella.

            Whether assessing or requiring an employee’s immunity to a specific pathogen or an employee’s health status in meeting the rigors of certain employment duties, an employer must meet the ADA requirements set forth above, including consideration of potential reasonable accommodations and engaging in the interactive process.  Moreover, in order to comply with the ADA, a vaccine mandate must be directly job-related and bear a connection to the employer’s business necessity. This traditionally has been a very difficult standard to meet unless the employer is part of the healthcare field or otherwise requires employees to regularly interact with immune-compromised clients, patients, or customers.  In the wake of COVID-19, it is anticipated that courts will continue to apply this existing caselaw and these principles, but in the context of a new and novel situation, which could yield varying results.  

Religious Objections:

In addition to medical exemptions, employers may receive requests for religious exemptions for vaccination requirements. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion.  It forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, training, or any condition of employment. Title VII also requires employers to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship on the employer.[19] 

The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but is more broadly defined to encompass “moral or ethical beliefs as to what is right and wrong which are sincerely held within the strength of traditional religious views.”[20]  To that extent, it has been found to apply to other belief structures that are not considered traditionally religious, like veganism, so long as the person ascribes to the view “with a sincerity equating that of traditional religious views.”[21]

It is not sufficient, however, to simply have a “sincerely held” opposition to vaccinations, not connected with a religious or other non-traditional spiritual belief.  For example, in Brown v. Children’s Hosp. of Philadelphia,[22] issued in February 2020, the Third Circuit affirmed the District Court’s grant of summary judgment in a case alleging religious discrimination under Title VII relating to a mandatory vaccine requirement.   Plaintiff claimed she was terminated from employment based on her religion when she refused to undergo a flu vaccine in accordance with hospital policy.  Notably, she had received the vaccination in years past, but stated that she could “no longer go against her beliefs” and refused it, resulting in her termination.  Plaintiff admitted, however, that she had no religious leader to validate her beliefs but instead claimed it was part of her “African Holistic Health lifestyle.”

In upholding dismissal of the suit, the court found that her objection to the vaccination was not based on a “religious belief.” In assessing what beliefs are “religious,” the court indicated that it would consider “whether they address fundamental and ultimate questions having to do with deep and imponderable matters, are comprehensive in nature, and are accompanied by certain formal and external signs.” The Court found that nothing of this sort was present in that case, and that plaintiff’s statements about “scrupulously washing her hands,” and concern that “the flu vaccine may do more harm than good,” indicated that her concerns were not religious in nature, but purely personal preference.[23]  

Where an employer is faced with a request for a religious exemption for a vaccination mandate, they are also required to offer reasonable accommodations that would allow the employee to continue working without taking the vaccine.  If those accommodations are reasonable, they can be implemented as a requirement to going without a vaccine, even if the employee is unhappy with the accommodation.  For example, in Horvath v. City of Leander,[24] in January 2020, the Fifth Circuit upheld a grant of summary judgment to the employer where the employee rejected transfer to another position in lieu of undergoing a TDAP vaccination required by his employer, a fire department.  

The plaintiff in Horvath, a Baptist minister, objected to the vaccination as a tenant of his religion.   He had previously been given exemptions on religious grounds from directives to receive regular flu vaccines, on the condition that he use certain protective equipment and cleaning protocols to prevent spreading the flu to himself, co-workers and patients he came into contact with as a first responder. When the department instituted a requirement that firefighting personnel receive a TDAP vaccine, he requested an exemption. The City offered him two accommodations that would allow him to go without the vaccine; transfer to another non-firefighting position or that he would be required to wear a respirator at all times on duty and keep a log of his temperature.  Plaintiff rejected both options, and was terminated.

In affirming dismissal of the case, the Fifth Circuit in Horvath stated that “Title VII does not restrict an employer to those means of accommodation that are preferred by the employee.”  The fact that the plaintiff did not like the accommodations, or that change to a non-firefighting position could result in his loss of other outside employment, was not sufficient to prove a claim for discrimination under Title VII.   Moreover, the court found that the plaintiff was not terminated for requesting a religious exemption, but because he refused to either undergo vaccination or select the accommodation provided by the City. 

In evaluating a request for a religious exemption to a vaccination requirement, an employer should ensure that any exemptions are provided uniformly, including when compared to exemptions given for medical reasons.  As a cautionary tale, in 2016, the  EEOC announced that it had settled a religious accommodation lawsuit, U.S. EEOC v. Saint Vincent Health Center,[25] pertaining to mandatory vaccination where evidence was presented that vaccine exemptions were handled disparately. Reportedly, the health center agreed to pay $300,000 for back pay and compensatory damages to a class of six former employees in addition to “substantial injunctive relief.” The crux of the EEOC’s lawsuit was that in instituting a flu vaccination requirement and permitting exemptions, the employer had granted fourteen exemption requests based on medical reasons, while denying all six of the religious-based exemption requests.  Accommodations offered to those granted medical exemptions included use of face masks during patient contact during the flu season. These were not offered to those seeking religious accommodations, who were instead fired when they refused to be vaccinated.   

            Like medical exemptions, religious exemption requests should be an individualized inquiry and the employer must engage in the interactive process and evaluate the possibility of accommodations.  Employers facing refusal to comply with vaccination requirements must walk a very fine line with respect to providing a reasonable accommodation and inquiring into the sincerity of an employee’s beliefs which need not adhere to any mainstream religious doctrine or tradition.  If a reasonable accommodation is provided, however, and the employee refuses, the employer is permitted to terminate the employee for failure to comply.    

EEOC Guidance on Mandatory Vaccination in Response to COVID:

            With COVID-19, employers are now faced with a new question in looking to determine whether they can require vaccination of employees once they are readily available, as a condition to continued employment.  The unprecedented nature of the pandemic makes it difficult to predict how existing decisional law and prior EEOC interpretation of federal law will be applied to claims arising from this new world.  The EEOC has continued to provide guidance to employers during this time period and recent publications appear to indicate that they are paving the way for implementation of mandatory vaccination requirements, even outside the healthcare industry.  Bear in mind that this is guidance, not the law, and even the EEOC’s interpretation of the ADA and Title VII could still be subject to challenge in a lawsuit.

            For the most up-to-date guidance from the EEOC, the agency has created a comprehensive webpage entitled “What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.”[26] Attorneys representing employers and insurance carriers writing EPL policies should keep up to date on the guidance provided by the EEOC as it has been developing and changing as new information is being processed regarding the impact of COVID-19, exposure rates, governmental regulation, vaccination availability and new regulations and oversight issued by the CDC.  

            Notably, the EEOC has recently taken the stance that vaccination itself is not a medical examination, although pre-vaccination questions may implicate the ADA’s provision on disability-related inquiries to the extent that such questions are likely to elicit information about a disability. Employers administering the vaccine must still show that the pre-screening questions it asks employees are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and therefore does not receive a vaccine, will pose a direct threat to the health and safety of himself or others.  

This standard would not apply, however, to voluntary vaccination (where the employee could refuse to answer the questions without facing consequences) or where the employer-required vaccination is completed by a third-party who does not have a contract with the employer.   There is nothing barring an employer from having its own in-house vaccination program, but if it does, it needs to be careful about asking pre-vaccination medical questions to the extent that doing so would implicate the ADA.

            The EEOC has also indicated that requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry, so long as the employer does not press further and seek to figure out why the employee has not undergone a vaccination. Employers are cautioned not to ask questions that could elicit medical responses, and that they may want to warn employees not to provide any medical information as part of the proof of vaccination in order to avoid implicating the ADA.

 As to mandatory testing, itself, the EEOC’s guidance confirms that employers are permitted under the ADA to implement such a requirement to ensure that employees do not pose “a direct threat to the health or safety of individuals in the workplace.” If a mandatory vaccination program has a result of screening out persons with a disability, the employer must show that the unvaccinated employee would pose a direct threat to the safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.  Employers are required to conduct an “individualized assessment” of factors including the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm.

The EEOC has stated that “[a] conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” While not an explicit green light for implementation of mandatory COVID-19 vaccination policies, given the nature of the pandemic, this statement sets the stage for employers to roll out mandatory vaccination programs that otherwise comply with federal law under traditional “direct threat” analysis.    

Even in that case, if the employer determines that the individual who cannot be vaccinated due to a disability poses a direct threat to the worksite, they cannot exclude that person from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation, absent undue hardship, that would eliminate or reduce the risk to the extent that the person would no longer pose a direct threat. The EEOC has stated that employers can rely on CDC recommendations in determining what constitutes a direct threat.

            These potential accommodations could include working remotely, if telework is an option.  It could also include alternative work locations, varied hours, or the use of certain personal protective equipment.  An employer cannot terminate a worker who is excluded from entering the workplace, if accommodations are available that would otherwise allow that person to work, with reduced risk of a direct threat. Another potential accommodation could include leave if available under the Families First Coronavirus Response Act, the Family and Medical Leave Act (or a state counterpart), or the employer’s leave policies or collective bargaining agreements.  

            Employers must engage in the interactive process to determine if a potential accommodation is available when an employee seeks an exemption from vaccination requirements.   The EEOC recognizes, however, that there may be situations where the particular job duties and workplaces make it so that accommodations are not an option, or where they would impose an “undue hardship.” Employers are cautioned to recognize, however, that the ability to exclude an employee from the workplace does not automatically mean the employee can be terminated, if there is an ability to perform the job functions in a way that does not result in exposure, such as remotely.  

            A similar process is undertaken if the exemption is requested for religious reasons.   The EEOC has advised that “once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.”  Employers are cautioned not to presume about practices, beliefs and observances that they may not be familiar with, but permitted to request additional supporting information if they have an “objective basis for questioning either the religious nature or the sincerity of a particular belief.”

            It remains unlawful for an employer to disclose that an employee is receiving a reasonable accommodation, so employers should make sure not to identify those employees who have not received vaccinations due to disabilities to other employees.   Employers cannot retaliate against an employee for requesting an exemption to a mandatory vaccination requirement.

Conclusions and Takeaways:      

While the EEOC has indicated that employers may be able to implement mandatory vaccination policies, including outside of the healthcare industry, in the appropriate circumstances, it does not provide any opinion or guidance on whether employers should require employees to be vaccinated. Mandatory vaccination implicates sensitive concerns of personal autonomy versus collective responsibility.  A survey conducted in late 2020 indicated that 57% of workers supported a mandatory COVID-19 vaccine for return to the office, with numbers especially high for older workers.[27]  As noted, however, there is a significant subset of the population that have expressed distrust towards the idea of a vaccine, or denial of its necessity, who would likely push back against employer mandates.

 

For these reasons, employers evaluating the potential for a mandatory vaccination requirement should proceed with caution to ensure that they are doing so in a way that is not going to violate federal laws which provide protection for those individuals who are unable to be vaccinated due to disabilities or their religious tenants and beliefs.  Such a program may not be the best option for many employers, and when implemented, a mandatory vaccination program should be a business-specific determination based on careful consideration of exposure rates, the kind of work performed, and size of the workforce and workspace, and other factors.  Additionally, state or local laws, or the presence of unions and collective bargaining agreements could have additional implications on a mandatory vaccine program or policy.

 

Employers considering implementing mandatory vaccination policies should work with counsel to ensure that a carefully crafted policy is drafted, providing a transparent process for employees who object to the mandate due to medical or religious reasons. The policy and program should be clearly communicated to employees, including information of what employees should do if they are unable to be vaccinated due to medical or religious reasons. Managers and supervisors should be trained on how the policy will be implemented and how they will respond to requests for an exemption.  This is not something that an employer should implement overnight, but should involve careful planning and development by the company’s HR and legal teams.  Employers should also be prepared for pushback and the possibility of employment claims or lawsuits that may accompany having such a policy in place.

 

Keeping this in mind, there are still several steps that employers can take to encourage employees to receive vaccines short of job-contingent mandates. Giving employees an option of either wearing protective equipment, such as masks and/or gloves, while working or receiving a vaccination on a voluntary basis would be permissible and would not implicate the ADA or Title VII.  There is nothing prohibiting an employer from mandating the use of personal protective equipment, and, in fact, OSHA requires employers to provide personal protective equipment as necessary to prevent occupational exposure to COVID-19.[28] 

Additionally, employees are more likely to get vaccinated if it is easy and affordable to do so.  Employers can subsidize the cost of vaccines, allow paid time off for doctor/clinic visits, or offer vaccines at the workplace to reduce inconvenience.  Providing assistance to employees in getting vaccinated for COVID-19 may reduce risk for exposure in the workplace while also not implicating federal discrimination laws.  Employers may want to consider these alternatives before defaulting to consideration of mandatory vaccination requirement, given the potential pitfalls.



[1] “Pertussis Cases by Year,” CENTERS FOR DISEASE CONTROL, available at https://www.cdc.gov/pertussis/surv-reporting/cases-by-year.html).

[2] “Remarks by President Biden on the Fight to Contain the COVID-19 Pandemic,” available at https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/01/26/remarks-by-president-biden-on-the-fight-to-contain-the-covid-19-pandemic/

[3] “COVID-19 Vaccines,” U.S. FOOD & DRUG ADMINISTRATION, available at https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines.

[4] A December 2020 study showed that 33% of individuals considered to be “essential workers” indicated that they would not or probably would not get the vaccine, in addition to 29% of health care workers.  “Best Evidence for How to Overcome COVID Vaccination Fears,” SCIENTIFIC AMERICAN (Jan. 7, 2021).   

[5] For a state-by-state review of Worker Vaccination Laws, see “Vaccination Laws,” CENTERS FOR DISEASE CONTROL, available at https://www.cdc.gov/phlp/publications/topic/vaccinationlaws.html.

[6] “Influenza Vaccination Information for Health Care Workers,” CENTERS FOR DISEASE CONTROL, available at: https://www.cdc.gov/flu/professionals/healthcareworkers.htm.  

[8] “Pre-Employment Inquiries and Medical Questions & Examinations,” EEOC, available at https://www.eeoc.gov/pre-employment-inquiries-and-medical-questions-examinations.  

[9] 42 USC §12112(d)(3).

[10] Hustvet v. Allina Health System, 910 F.3d 399 (8th Cir. 2018).

[11] 42 USC §12112(d)(4).

[12]  29 C.F.R. § 1630.2(P) and (R); see also Conroy v. New York State Dept of Corr. Services, 333 F.3d 88 (2d Cir. 2003).

[13] See “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA,” EEOC, available at: https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

[14] 736 Fed. Appx. 35 (3d Cir. 2018).

[15] 2017 U.S. Dist. LEXIS 73546 (M.D. Pa 2017).

[16] Notably, in Chmura v. Monongalia Health Sys., 2019 U.S.Dist.LEXIS 134373 (ND. W. Va. 2019), the court found that plaintiff’s ADA claim was subject to dismissal in that she failed to provide any medical evidence that she was hypersensitive or otherwise allergic to any element of the vaccine, or had any contraindications.

[17] 910 F.3d 399 (8th Cir. 2018).

[18] See also Norman v. NYU Langone Health System, 2020 US Dist.LEXIS 180990 (SDNY 2020), where the court found that episodic anxiety and shortness of breath that plaintiff claimed she experienced when receiving vaccinations was not enough to constitute a disability that limited her ability to perform her major life functions.

[19] See EEOC Directive 915.063, “Section 12 of Compliance Manual on Religious Discrimination,” EEOC, available at https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination

[20] 29 CFR §1605.1.

[21] See Chenzira v. Cincinnati Children’s Hospital, 2012 U.S.Dist.LEXIS 182139 (S.D. Ohio 2012). Note that the plaintiff also argued that their interpretation of the Bible factored into their decision to retain a strict vegan lifestyle.   

[22] 794 Fed. Appx 226 (3d Cir. 2020).

[23] See also Fallon v. Mercy Catholic Med. Ctr, 877 F.3d 487 (3d Cir. 2017); Caviezel v. Great Neck Pub. Schools, 500 Fed. Appx. 16 (2d Cir. 2012).

[24] 946 F.3d 787 (5th Cir. 2020).

[25] Civil Action No. 1:16-cv-234, Western District Court, Pennsylvania.

[27] “57% of Workers Support a Mandatory COVID-19 Vaccine for Return to Office,” CBNC (Dec. 18, 2020). 

[28] For OSHA’s guidance on response to COVID-19, see https://www.osha.gov/coronavirus.

 

Zarwin Baum Announces New Shareholders

(FEBRUARY 2021) Zarwin Baum is pleased to announce that Matthew Kessler and Greg Mallon of our Casualty & Professional Liability Defense Practice Group have been promoted to shareholders.

“We could not be more proud to announce our newest shareholders.  In their own way, they each have become invaluable to our firm.  Zarwin is fortunate to be able to add Greg and Matt to our already expanding leadership group.” - Mitchell Kaplan, Managing Director

Gregory M. Mallon, Jr. concentrates his practice on complex civil litigation defense, primarily defending our clients in matters involving liquor liability (e.g. dram shop, social host, fraternities), transportation, construction, products liability, and premises liability matters, many of which are significant damage claims.

Greg shared, "It is a privilege to be recognized by the leaders of the Firm as someone who is trusted to represent the Firm as a shareholder.  While I continue to represent my clients with the fullest capacity of my honesty, empathy, and energy, I accept the challenge that handling higher-level cases brings.   I am proud to work with some of the best litigators in the region and a support staff that works tirelessly to keep my head on straight and my hair combed."

"In a short period of time Greg rose to become an extraordinary member of the Firm due to his unique ability to understand client needs and to address those needs from the moment he is assigned. "- Theodore Schaer, Director and Co-Chair of the Property and Casualty Defense Department and Chair of the Cyber Liability, Privacy and Data Security Department.

Matthew P. Kessler concentrates his practice on insurance defense matters, including premises liability, product liability and motor vehicle accidents, as well as environmental and toxic exposure matters.  

Matthew shared, "I am honored to be recognized as a shareholder at Zarwin Baum and fully accept the higher standard that accompanies that position.  This challenge drives me harder to obtain even better results for my clients as I am now truly a part of this Firm. I turn my eye towards the future with enthusiasm and confidence that I work with some of the most well-respected professionals in the region."

"Matt Kessler has been an amazing addition to our group since the day I hired him to join our Jersey City office.  I am excited that Matt has joined me as a shareholder and look forward to many more years working together!"- Lisa Slotkin, Managing Director of Zarwin Baum's Northern New Jersey office located in Jersey City, and Co-Chair of the Casualty & Professional Liability Defense Group

 

INSURTECH: Innovation Explained

Technological innovation knows no bounds, and such innovation has begun to creep its way into the insurance defense practice. While the days of insurance giants certainly are ongoing, and likely to continue into the future, the headway made by smaller “InsurTech” firms will certainly make an imprint on the way claims are made by the end user and then handled by the insurance defense firm as this decade proceeds.

            InsurTech, a non-discrete combination of the words “insurance” and “technology,” describes the practice of using highly complex algorithms to offer extremely customized insurance policies to users based on data pertaining to trends in the end user’s personal habits as they relate to user’s health, hobbies, lifestyle, travel, etc. Additionally, these customized insurance policies are not necessarily dormant, the technology allows the policies to “learn” more about the users and their driving patterns over time and adjust the policies accordingly. While insurance companies have always collected mass amounts of data from their insureds, InsurTech allows the company to utilize the data more effectively in the following areas:[1]

  • Predicting the risk of future losses
  • Detecting fraud
  • Processing claims

            From 2010-2019, which are generally considered to be the first nine years of InsurTech, approximately $16.5 billion has poured into InsurTech startup companies.[2] The days of an individual calling a local insurance agent and having them set that individual with a policy are coming to an end, as the individual can now pull up an InsurTech company’s smartphone app on their device and have an insurance policy tailored to their specific lifestyle and needs within minutes of opening the app.

            Themis is fortunate to have strong working relationships with two of the largest, budding InsurTech companies, Root Insurance Company and Lemonade Insurance Company. Root Insurance Company, headquartered in Columbus, Ohio, and was launched in 2015.[3] For Root, who exclusively offers motor vehicle insurance, a driving test is required to be taken by its potential insureds which provides the litmus test for coverage and pricing. The theory being that by insuring only “good” drivers, Root will be subject to fewer losses. Lemonade, now available in more than half of the United States, offers expanded categories of insurance including homeowners and pet insurance.

            It is a certainty that algorithmic based insurance policies will have a great impact on the handling of litigation. Use of InsurTech may lead to the days of the attorney becoming a part of the litigation process shortly after the cause of action arises to begin coming to an end, as information pertaining to the user will be highly accessible. Access to InsurTech carrier’s files regarding risk factors associated with an insured may serve to hamper or bolster a defense based on the knowledge of the insured’s driving record.

            An additional consideration, with regard to the use of InsurTech apps which are active while the insured is operating a motor vehicle, will be the ability to record real-time driving information similar to an electronic control module (“ECM”) most commonly used in trucks. Perhaps the app provided by InsurTech companies will be ale to determine speed of the vehicle and braking distance. Such information could serve to benefit both parties in subsequent litigation. For the plaintiff, such information, assuming its discoverability, could provide data proving negligence per se by violating local speed ordinances or failure to maintain proper distance. For a defendant, such data could provide arguments as to safe driving practices and defensive maneuvers taken prior to the accident.

            It is a certainty that a wide array of data collected by InsurTech companies will allow for broad and expansive discovery. There will be no more debating on essential facts, rather both parties will have a file full of pertinent facts to the matter. Having all of the pertinent facts will allow each party to avoid unnecessary litigation as it relates to filing of discovery motions and will allow for a more expeditious and fair trial. Further, more expeditious handling of lawsuits will allow for easier flow of claims and lessened hold up in the resolution of matters.

            InsurTech appears to be the future of claims handling. The ability to take advantage of the array of new data provided by such companies will be critical to the handling of claims once they reach the litigation stage. 

This article was written by Michael Schaer.  Michael is an attorney in the insurance defense practice group of Zarwin Baum’s Pennsylvania office who focuses his practice on the defense of personal injury, property, and professional liability matters.  Zarwin Baum is a founding member of the Themis Advocates Group with offices in Pennsylvania, New Jersey, and Delaware.


[1]The balance small business, “What is insuretech,” Marriane Bonner

www.thebalances.com/what-is-insurtech-4584490. Accessed Agust 13, 2020.

[2] The Center for Insurance Policy and Research “Insuretech,”

Https://content.naic.org/cipr_topics/topc_insuretech.htm.” Accessed August 13, 2020.

[3] Root Insurance wants to do to auto coverage was Amazon has done to  retail, Mark Williams, The Columbus Dispatch. https://www.dispatch.com/news/20180526/root-insurance-wants-to-do-to-auto-coverage-what-amazon-has-done-to-retail. Accessed November 12, 2020.

 
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