October Section Meeting Schedule & Upcoming DBA Event Calendar

Upcoming at the DBA

For a complete list of CLEs Events & Section Meetings: daybar.org

NOVEMBER 2021

1Juvenile Law Section Meeting

3Young Lawyers Division Section Meeting

529th Annual Bench Bar Conference with Linda Greenhouse 8 Immigration Law for Non-Immigration Lawyers Seminar

9Civil Trial/ADR Section Meeting How "Free" is Free Speech on Social Media? Seminar 10 Appellate Court Practice Section Meeting Chancery Club Luncheon / 50 year Honoree Celebration Estate Planning Trust & Probate Section Meeting w/optional 1.0 Hr CLE "The Secure Act" 13 Wills for Vets

15 Federal Practice Section Meeting 16 Professionalism Matters Core Components for Successful Law Practice Seminar

17 Criminal Law Section Meeting

18 Paralegal Section Meeting Workers' Compensation & Social Security Section Meeting Corporate Counsel Section Meeting 30 Diversity Issues Section Meeting

DECEMBER 2021

1New Admittee Reception

7Judge Steven K. Dankof’s 2021 Criminal Law Update Seminar

9Federal Judges Update Seminar

13 Holiday Luncheon with Chief Justice Algenon L. Marbley

17 29th Annual Intellectual Property for General & Corporate Practitioners Seminar

By Jason P. Matthews Esq., Co-Chair | Jason P. Matthews, LLC | jason@daytonemploymentlawyers.com

Employment Law

While Your Employer Cannot Require You to Recieve the Covid-19 Vaccine, They Can Probably Fire You If You Refuse to Be Vaccinated

Employment lawyers representing employees and employers have been working tirelessly since March 2020, to educate themselves and their clients on the latest developments in the law. From mass layoffs and Pandemic Unemployment Assistance to mask mandates and labor shortages, employment lawyers have been doing the best that they can with few clear answers. The latest employment law development pertains to vaccination mandates. On September 9, 2021, President Biden announced executive orders and new federal rules requiring that all federal government employees and contractors be fully vaccinated against COVID-19 by November 22, 2021, that all employees of healthcare providers receiving Medicare and Medicaid funds be fully vaccinated in accordance with rules promulgated by the Centers for Medicare and Medicaid Services and that all entities with over 100 employees be must require all employees be fully vaccinated against COVID-19 or be subjected to weekly COVID testing as directed by rules being formulated by the Occupational Safety and Health Administration.

Many employees are asking whether they can be required to receive the COVID-19 vaccine. The short answer is “no.” However, under current law an employer can legally terminate an employee who refuses to receive the vaccine, with a few exceptions. Those exceptions consist of employees who cannot be vaccinated due to a disability and/or because of religious reasons and the vaccination requirement would violate the employees’ rights under Ohio Revised Code Section 4112, the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), the Rehabilitation Act of 1973 or Title VII of the Civil Rights Act of 1964 (Title VII). Additionally, public sector employees have protections under the Constitution and some private sector employees may have contractual rights.

Ohio Revised Code Section 4112 prohibits discrimination on the basis of disability and religion against private and public sector employees, The ADAAA prohibits discrimination on the basis of disability against private sector and public sector employees, with the exception of employees of the federal government, the Rehabilitation Act prohibits discrimination against federal government employees on the basis of disability and Title VII prohibits discrimination against public and private sector employees on the basis of religion.

Under the ADAAA an employee must establish (1) that he or she is a disabled person within the meaning of the Act, (2) that he or she is qualified to perform the essential functions of his or her job with or without reasonable accommodation, and (3) that he or she suffered an adverse employment action because of his or her disability.i The ADAA defines “disability” to include a physical or mental impairment that substantially limits one or more major life activities, including the functions of major bodily systems.ii Employees who have a recognized disability are entitled to a reasonable accommodation which will allow

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Wednesday, November 10 | Noon-1:00pm The Old Courthouse

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them to safely perform their job duties and the accommodation does not place an undue hardship on the employer.

The reality in applying the disability discrimination laws to the vaccine mandate is that while many employees have medical conditions which can be defined as disabilities under the ADAAA, few have conditions for which they have been advised by healthcare providers not to receive one of the three COVID-19 vaccinations. Title VII broadly defines the term “religion” to mean “all aspects of religious observance and practice, as well as belief.”iii To establish religious discrimination, an employee must show 1) a sincere religious belief in conflict with the vaccine requirement; (2) that he or she informed the employer of the conflict by requesting an accommodation, and (3) that he or she was discharged or disciplined for failing to comply with the vaccination requirement.iv

Despite employees having protection against discrimination based on religion, employers have a limited duty to accommodate the religious beliefs and practices of their employees. Employer do not have to offer any accommodation that imposes an “undue hardship” on its business. In the religious discrimination context this means anything more than a “de minimis cost.” v

In addition to protections against discrimination in the workplace, federal, state and municipal government employees have constitutional rights. The constitutionality of the vaccine mandate, for these employees, will likely hinge upon Courts balancing the employee’s liberty and privacy interests in engaging in a chosen profession and his or her own body with the public health need for widespread vaccination. In Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358 (1905), the United States Supreme Court upheld the right of states to compel vaccination as a reasonable exercise of the state’s police power.

In Valdez v. Grisham, — F. Supp. 3d —-, 2021 WL 4145746 (D.N.M. 2021), the District Court recently decided the constitutionality of a state law mandating that healthcare workers be vaccinated against COVID-19. The Court applied the standard used in Klaassen v. Trustees of Indiana Univ., 2021 WL 3073926, (N.D. Ind. 2021), finding that while employees may have a right to engage in their chosen professions, governmental infringement on this right will be presumed to be valid so long as it is rationally related to a legitimate state interest.vi In Beckerich v. St. Elizabeth Medical Center, (E.D. KY 2001) --- F.Supp.3d ----2021 WL 4398027, the Court addressing the same issue stated, “If an employee believes his or her individual liberties are more important than legally permissible conditions on his or her employment, that employee can and should choose to exercise another individual liberty, no less significant – the right to seek other employment.”

Undoubtedly, the various components of the vaccine mandates announced on September 9, 2021, will be decided by the Federal Courts of Appeals and likely the United States Supreme Court in the coming months. Employment lawyers can only hope that clear answers from the Courts come sooner rather than later.

ENDNOTES:

i Beckerich v. St. Elizabeth Medical Center, (E.D. KY 2001) --- F.Supp.3d ----2021 WL 4398027 ii 42 U.S.C. § 12102(2)(A). 42 U.S.C. 2000e-2(i) iii Beckerich v. St. Elizabeth Medical Center, (E.D. KY 2001) --- F.Supp.3d ----2021 WL 4398027 citing Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007) iv Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007). v https://www.lexology.com/library/detail. aspx?g=8f3d8189-3f85-4c83-9e3d-8eb6c25d52b7, Andrew Tauber, Anti-Vaxxers Do Not Have a Constitutional or Statutory Right to Endanger Everyone Else