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ASK MSMS LEGAL COUNSEL: REQUIRING COVID-19 VACCINATION

By Daniel J. Schulte, J.D.

QUESTION: Despite the fact that the vaccine has been made available to all my employees, at this point a couple of them have refused to get it. Other employees say that they have been vaccinated but I wonder if I am being told the truth. I was told I should not be asking whether an employee has been vaccinated and that I cannot terminate the employment of an employee who refuses to be vaccinated. Is this true? Can I require proof that an employee has been vaccinated? Can I terminate employees or place them on leave if they refuse to be vaccinated?

ANSWER: You have been given incorrect or outdated information. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance for employers regarding COVID-19 vaccination. One thing the EEOC’s guidance makes clear is that it is legal to ask an employee whether he/she has been vaccinated and to require proof of the vaccination. Generally, the EEOC guidance states that a healthcare employer with a valid job-related reason can require an employee to receive a COVID-19 vaccine as a condition of employment. However, there are two exceptions. The first apples to employees who are unable to receive the vaccine due to a disability recognized by the Americans with Disabilities Act. The second applies to employees having a “sincerely held religious practice or belief” (as contemplated by Title VII of the Civil Rights Act) preventing them from being vaccinated. Employers are also entitled to ask questions regarding an employee’s disability to make a reasonable determination that a recognized disability exists. An employee’s generalized claims of “chemical sensitivities, allergies and the like” has been held by one federal appellate court in a recent case to not constitute a disability under the Americans with Disabilities Act. These inquiries must be job related and consistent with business necessity. Generally, prior to excluding an employee with a recognized disability preventing him/her from receiving the vaccine, the employer must determine that the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation. In a medical practice setting, such reasonable accommodation might include requiring the unvaccinated employee to wear a different type and grade PPE that vaccinated employees are no longer utilizing. All determinations of what reasonable accommodations will be made for an employee unable to receive a vaccination due to a disability should be made on a case-by-case basis. An employer is similarly required to accommodate employees who have a sincere religious belief that prevents them from being vaccinated, unless doing so would be an “undue hardship.” This undue hardship standard is less stringent than the standard used for determining a reasonable accommodation for an employee with a disability, requiring only that the employer show that providing an accommodation imposes “more than a de minimis cost or burden on the employer.” Again, in a medical practice setting, such an accommodation might include requiring the employee to continue to utilize PPE that vaccinated employees are no longer utilizing. The EEOC guidance states that employees who are not vaccinated due to a disability or a sincerely held religious belief and that cannot be reasonably accommodated may be “excluded” from the workplace. Excluded does not mean only terminated. If an employee can perform his/her job functions remotely, this possibility must be considered. Obviously, in a dental practice setting, remote work is not going to be a possibility for many employees (e.g., hygienists, assistants, dentists, etc.). Employees who do not have a disability or sincerely held religious belief preventing them from being vaccinated are currently not subject to the protection of any law that would prevent them from being disciplined or terminated for their refusal to be vaccinated and/or providing proof of vaccination when requested by an employer.

Legal Services from MSMS

MSMS members can access MSMS Legal Counsel by contacting the MSMS Health Care Delivery Department at (517) 336-5723 or (517) 336-5766. General legal questions on a variety of issues of concern to physicians statewide (e.g., medical record retention, medical records charges, privacy issues, Stark, etc.) are answered for FREE as a benefit of MSMS membership. Please note, if the scope of the inquiry requires more than general legal assistance/clarification or if individual representation is needed, MSMS Legal Counsel and the MSMS member would discuss options, including charges, before proceeding.

Dean’s Message: Match Day 2021 and Commencement

The mission of the College of Medicine is to educate diverse students and train culturally competent physicians to provide comprehensive care to underserved populations (both rural and urban) in Michigan and beyond. We see our mission fulfilled each March with Match Day, the day when medical students across the nation learn where they will conduct their residencies. Friday, March 19, was Match Day, with 90 CMU College of Medicine students participating in the process. • 61% of our students matched to primary care residencies • 47% of our students matched within the state of Michigan • Five students matched with the CMU Medical Education Partners residency programs in Saginaw o Carmen Avramut – Psychology/MIDOCS o Ryan Guthrie – Emergency Medicine o Danielle Hebert – General Surgery o Trusha Patel – Psychology o Kyla Walworth – Ob/Gyn • Three students matched to our branch campus at Ascension St. John Hospital in Detroit. o Rabia Mahmood – Internal Medicine o Raghuram Palepu – Internal Medicine o Tamara Siblini – Ob/Gyn

Our medical students take with them lessons learned on the front lines of a global pandemic - experiences that will shape their residencies and the remainder of their careers. As they voluntarily staffed testing and vaccination clinics, the students confirmed their capacity for compassionate care, and they witnessed how public health infrastructure and science-based community health measures have direct implications for patients’ lives. Their successful navigation of this national health crisis is a testament to our mission and their commitment to advancing health care for all people.

As we move forward toward Commencement, I am pleased to announce CMU is planning an in-person, outdoor ceremony for May 7, 2021, for the Classes of 2020 and 2021 College of Medicine students. Though audience capacity will be limited, a livestream of the ceremony will be available for those unable to be physically present. I am incredibly proud of our students, faculty and staff whose determination and resilience brought the College of Medicine through a turbulent year. Thank you for your patience, your dedication and your steadfast support of one another.

Sincerely, George E. Kikano, MD CMU Vice President for Health Affairs Dean, CMU College of Medicine

Student Spotlight

Michael Megaly, Sterling Heights, matched into General Surgery at the University of Minnesota. “The past four years have been the most exciting, rewarding, humbling, and eye opening years I have ever experienced. I’m looking forward to this next phase of my life and continued education in residency. I would have never made it this far without my faith, family, and friends, so thank you all!”

CMU Pediatricians Lead the Way in COVID-19 Research for Children

$1.5M in federal grants awarded to diagnose and manage severe illness

Pediatrics professors in CMU’s College of Medicine are researching a method to fundamentally change the diagnosis and management of severe COVID-19 related illness in children using saliva samples. The study is one of only eight in the nation funded by the National Institutes for Health to develop approaches for identifying children at high risk for Multisystem Inflammatory Syndrome in Children (MIS-C), a rare and severe after-effect of COVID-19 or exposure to the virus that causes it.

Usha Sethuraman, MD, co-principal investigator, professor of pediatrics at the CMU College of Medicine, and University Pediatricians emergency department physician at the Children's Hospital of Michigan, and her team are studying the role of salivary biomarkers known as miRNA, cytokines (indicators of inflammation), plus Artificial Intelligence to develop a predictive model of severe COVID-19 disease.

"If proven effective, this will be a game-changer because this model could be used in health care settings to identify

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Joint care personalized for you

Age, arthritis and injury are all possible reasons for joint pain. Living with joint pain can stop you from enjoying the things you love. Our orthopaedic and sports medicine specialists treat a variety of conditions and injuries so you can get back to living your life with less pain. They work with you to create a comprehensive care plan for your specific condition and needs. They utilize a range of treatments from nonsurgical options to same-day surgery and minimally invasive procedures to advanced surgical techniques. Because each patient’s journey and time to heal are different, they also provide personalized physical therapy plans.

Meet our specialized orthopaedic and sports medicine team

Waheed Akbar, MD

Angel Bermudez, MD Nathan Krebs, DO

Kevin Lawson, MD

David Laura Lemos, MD Reitz, DPM

Tarek Taha, MD Pervez Yusaf, MD

Specialized in treating: • Advanced surgical techniques including Mako TM robotic-arm assisted surgery • Trauma including complex fracture care, malunions, nonunions • Revision hip, knee and shoulder replacements • Acetabulum (hip socket) and pelvic fractures • Shoulder surgery • Fractures and sprains • Complex joint fractures • Dislocated joints and joint pain • Arthritis • Carpal tunnel syndrome • Trigger finger • Ganglion cysts and painful swelling • Nerve pain and muscle weakness • Tendon conditions and more Our sports medicine doctors and care teams will design a comprehensive care plan for specific injuries and needs. Your personalized treatment plan may include a combination of: • Medical treatments • Spine surgery • Concussions • Foot and ankle surgery • Arthroscopic surgery • Advanced surgical options • Sports injuries - operative • Outpatient minimally invasive and nonoperative procedures • Sports rehabilitation, strength • Performance psychology and training and conditioning nutrition counseling

Meet our advanced practice providers

Toby Blosser, MS, AT, ATC

Molly Bonnington, NP Tiffany Wirtz, NP

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those children most likely to develop severe COVID-19 related disease," Dr. Sethuraman said. "University Pediatricians serves the inner-city population of Detroit, one of the areas hit the hardest by COVID-19 in Michigan. We have an opportunity to dramatically improve the care and long-term outcomes of these children."

While COVID-19 has impacted adults more than children, MIS-C does occur in children exposed to COVID-19. More than 1,500 children in the U.S. have developed MIS-C, and some have required critical care. In severe cases, MIS-C has caused heart dysfunctions with long-term implications. Dr. Sethuraman said that early recognition is the key to successfully managing the disease and ensuring positive outcomes. "For a health care provider, it is difficult to distinguish the one child who is going to develop severe disease," she said. "All of the current screening tools lack sensitivity and specificity, and those tests involve blood draws. The model we are researching is completely non-invasive, requiring only two saliva samples." Artificial Intelligence also will be used in the predictive model to integrate a child's social, demographic, clinical and laboratory data, along with miRNA and cytokines from the child's saliva. One of miRNA's functions in the body is to regulate the inflammatory process in response to infection. Investigators want to see if there is a difference in the levels of salivary miRNA and cytokines in children with severe infection compared those with mild cases of the disease.

The research study was funded through the NIH Eunice Kennedy Shriver National Institute of Child Health and Human Development. The grant is awarded in two phases, providing $735,449 for the first year and, based on funding availability, $698,020 in the second year.