Vaccine reaction: What impacts might mandates have on Nevada employers?

In this January 2021 photo, a Renown Health employee prepares a COVID-19 vaccine dose.

In this January 2021 photo, a Renown Health employee prepares a COVID-19 vaccine dose. Courtesy: Renown Health

By Rob Sabo

Monday, November 15, 2021

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EDITOR’S NOTE: The NNBW reached out to half a dozen Northern Nevada businesses with a workforce greater than 100 employees for comment on this story, but did not hear back on the hot-button issue.


To vax or not to vax, that is the question. For Renown Health, the answer is vaccinate.

Northern Nevada’s largest medical facility — the hospital employs more than 6,750 — last week issued clear guidance regarding its stance on employee COVID-19 vaccination in a press release and letter issued to its workforce. The gist: get jabbed or get gone.

“We hold ourselves out to the public as a safe place where they can get care,” said Tony Slonim, Renown’s president and chief executive officer. “About 80 percent of our employees have already gotten vaccinated. We want to communicate openly and effectively (with the other 20 percent) and get rid of any misinformation and drive a conversation that hopefully will add another 5, 10 or 15 percent to that number over the coming months.”

Slonim said Renown’s unvaccinated employees — roughly 1,350 people as of Nov.  9 — must get a first dose of COVID-19 vaccine by Dec. 5 and a second by Jan. 4 or face termination unless they qualify for deferral or exemption based on medical or religious grounds.

Renown Health President and CEO Tony Slonim sent a clear message last week to unvaccinated employees: get jabbed or get gone.

 

“If you have a religious exemption, that’s fine,” Slonim told the NNBW in an interview last week. “We are making appropriate accommodations for those who have physician’s notes or religious exemptions. But otherwise, we are expecting people to get vaccinated.

“Refusal of vaccination without a qualifying exemption (will result in) termination of employment.”

FUTURE LAWSUITS LIKELY

The hospital’s vaccine mandate complies with a federal OSHA mandate issued by the Biden administration requiring companies with 100 or more employees to have a fully vaccinated workforce by Jan. 4 or face stiff fines.

Of note, that mandate has been halted by the Fifth Circuit Court of Appeals and appears headed to the Supreme Court, said Shannon Pierce, a director in the Reno law office of Fennemore’s employment and labor division.

However, there are two additional vaccine mandates in the U.S. One stipulates that all federal contractors must be vaccinated, while the other directive requires vaccination for healthcare providers who work with Medicare or Medicaid patients.

Shannon Pierce, director of employment and labor at the Reno office of Fennemore, says the firm has been working with many companies to help them understand which vaccine mandates apply to their organizations.

 

“Businesses are really going to be against a rock and a hard place come Jan. 4, assuming that’s the date it goes forward,” Pierce said. “Employers are going to be put in the position of having to enforce the rule and say, ‘you’re fired’ because you didn’t get vaccinated or face substantial fines from the federal government and state governments as well.

“Will there be claims against employers for discriminatory or wrongful termination? Certainly. Where it will be a tight spot for employers is when employees claim they couldn’t get a shot for religious or disability-related reasons, and their employer didn’t believe them and fired them.”

Nevada is an at-will work state, so there are no laws protecting non-religious and non-disabled employees who don’t want to get vaccinations, Pierce added. Courts also aren’t likely to view favorably on claims brought forth by that group, she continued.

Renown’s vaccine mandate may be new for a Nevada-based organization, but it’s hardly a novel concept, Slonim added.

“We have good precedent around the nation,” he said. “The American Hospital Association, American Medical Association, and 175 other health systems have done this. We are not on the leading edge. It may be new for Nevada, but it’s not new around the nation.

“This is now a healthcare regulation with important due dates,” he added. “We can’t be caught at the last minute trying to create a process for our employees. We need to make sure we are aligned with the timetables and we are following the administration’s deadlines because we rely on the government for many things.”

NAVIGATING UNCHARTED WATERS

Renown has borne the brunt of the effects of COVID-19: At one point, the hospital converted its parking garage into a care unit for COVID patients due to lack of bed space within the hospital.

Pierce said Fennemore has been working with many Northern Nevada companies to help them understand which vaccine mandates may apply to their organizations.

There’s been a lot of pushback, Pierce noted, because employers don’t want to be the “vaccine police” for employees who choose to decline vaccination. But that blowback is offset by 18 months of catastrophic economic and social ramifications of the lingering pandemic.

“If we are not all going to get vaccinated, how are we going to get past this thing,” she said. “One thing that needs to be remembered in terms of employers applying this law from a social perspective is that there may be some folks who are eager to get vaccinated but simply can’t, such as (people) with special needs.

“In the workforce, the whole point of the OSHA standard is to protect those who are vulnerable by requiring those who are able to get a vaccine to get us past this thing.”

Pierce said from a legal perspective, the last 18 months have been fascinating as labor and employment attorneys navigate uncharted waters.

“There’s not a lot of areas of employment law that lawyers don’t know — most of it is pretty fully developed,” she said. “This is a brand-new issue with no background, and even the best HR lawyers and HR professionals are facing questions they have never had to deal with before.”

Renown’s Slonim said one key point to increasing vaccination rates is turning around pessimism for the vaccination among unvaccinated employees. Employees who simply don’t want to get vaccinated can’t work at Renown, he added.

“Nevadans are known for their pioneering spirit — it’s embedded within every Nevadan,” he said. “If we can tap into that spirit and leadership and advance vaccination rates, we will conquer COVID. The more people we get vaccinated, the more we can hold this virus at bay.”

RECORDS AND EXEMPTIONS

Reno-area law firms have been spending countless hours counseling regional businesses about vaccine mandates. Pierce has been working closely with businesses and their HR professionals to make sure they have clearly defined policies regarding employee vaccination requirements.

“A policy requires record-keeping, so there’s a lot of focus on getting that right leading up to (Jan. 4),” Pierce told the NNBW. “There’s also a lot of focus on addressing claims of religious exemptions. Disability-related questions are somewhat easier to manage — a doctor can substantiate whether an employee can get vaccinated. Religion is a much tougher issue to weigh, because how do you figure out if someone just found Jesus because they don’t want to get vaccinated?”

Pierce advises regional businesses to engage legal counsel to make sure they fully understand the legal ramifications of vaccination requirements and to ensure they have vaccination policies in place.

“HR professionals are having to figure out what to ask employees who claim they have a religious exemption,” she said. “Those are things businesses need to think about in advance — you don’t want to be addressing that on the fly. Have a plan in place ahead of time.”

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