The Delta Variant -- Medical & Legal Considerations in the Workplace

On August 27, 2021, The Greater Baltimore Committee (GBC) hosted GBC Newsmaker Speaker Series: The COVID-19 Delta Variant — Medical and Legal Considerations in the Workplace with Dr. Mohan Suntha, President and Chief Executive Officer of the University of Maryland Medical System (UMMS), and Harriet E. Cooperman, Partner at Saul Ewing Arnstein & Lehr LLP. Donald C. Fry, President & CEO, Greater Baltimore Committee, moderated the discussion.

In his opening remarks, Fry said that the recent surge in COVID-19 cases, hospitalizations and deaths is “creating a degree of uncertainty” about the pandemic’s potential impact on schools, workplaces and other venues and that we now face a “pandemic of the unvaccinated” that raises many medical and legal questions.

Dr. Suntha agreed with that assessment and discussed recent pandemic medical data, trends and the medical reasons individuals should get vaccinated.

Some highlights of his discussion include:

The Delta variant of the virus has surged and now accounts for 90% of all cases in the U.S. In May it was 3% of cases.
In Maryland, recent data shows Delta accounts for 100% of the COVID-related deaths.
Delta is more transmissible than the virus seen in the early stages of the disease.
The available COVID-19 vaccines all have shown to be effective against Delta. “The data speaks to the value of the vaccines,” Dr. Suntha said.
Recent data shows that those most at risk of Delta are in younger age groups, compared to early in the pandemic when it was the elderly, health care workers and those immunocompromised. These demographic groups have largely been vaccinated and are no longer at high risk.
Getting vaccinated is not only the best protection against infection, it is also one way to help biology curb or prevent other variants from emerging. “Vaccines are ahead, but variants are catching up,” Dr. Suntha said. “We have to think about this as a race.”
Vaccines for young children are under development and these should help to further stem transmission in the population.
In the meantime, the best way to help protect children is for individuals to get vaccinated.
Booster shots are “a triumph of science” and scientific research says they will be needed to keep individual immune systems “revved up” to fight the virus.
The decision by UMMS to mandate vaccination by all employees was “straight forward” because there is no greater role in health care than protecting the health of employees, patients, visitors and others.
UMMS has mandated proof of vaccination from all outside vendors and contractors for the same reason.
The reaction to the mandate from most employees was one of “gratitude.”
With a number of other organizations and businesses requiring employee vaccinations as a work condition, expect to see more follow with their own mandates.

Cooperman discussed the legal aspects of the decision to mandate vaccines in the workplace and what steps employers should take before implementing a required vaccination policy.

Some of highlights of the discussion include:

The legal justification for employers to mandate COVID vaccination is primarily to protect the “health and safety” of all employees.
As part of the justification, employers can point to the fact that at least one vaccine has been fully approved by the FDA.
Employers can also cite the added insurance and lost work costs of covering employees who become ill with COVID.
Employers can require the COVID vaccination even if an employee does not interact in-person with other employees, customers or clients.
Under federal law and Maryland law, employers can require employees to be vaccinated regardless of where they work.
Employees can seek an exemption for medical or religious reasons, which are covered under the Americans with Disabilities Act and Title VII, respectively.
Employees seeking either of these exemptions can be required to provide documentation to the employers, such as proof of a health condition that may be susceptible to adverse effects of the vaccine or documentation of their religious beliefs and how that correlates with their objection.
Employers might also decide to provide employees who object to the vaccine the option to continue working, but to wear masks, stay out of common areas and get tested on a specific periodic basis, such as weekly.
Employers would have to absorb the cost of testing.
Steps employers should take before implementing a vaccine policy should include:

Decide the scope of the policy
Decide who the policy will apply to
A statement of the justification for the policy
Outline what fully vaccinated means and the waiting period between vaccination and a return to work
Acceptable records to show proof of vaccination
Outline allowed exemptions
Outline obligations of those exempted
Outline consequences for non-compliance

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