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KMS Update: Guidance on new vaccine mandate after court issues injunction; Dr. Clifford elected to legislature; 2022 Advocacy Day schedule; and more

2022 Advocacy Day schedule now available
We are planning to hold the 2022 Advocacy Day in person on January 25 in Topeka. Among other things, Advocacy Day will offer a chance to hear from KMS leadership about the upcoming legislative session, to meet with legislative leaders, and to meet with your specialty society peers. While some specialty societies may also hold events later in the year, Advocacy Day is the one event of the year for all Kansas physicians. The event schedule is now available here:  www.kmsonline.org/AdvocacyDay.



Guidance on the current status of OSHA and CMS vaccination mandates
As a result of several legal challenges, the two federal vaccine mandates have been temporarily suspended. The OSHA rule mandated COVID-19 vaccination or weekly testing of individuals working for employers with 100+ employees. The CMS mandate required COVID-19 vaccination for covered health care workers in CMS-certified healthcare facilities (which with certain exceptions does not include most physician offices). The vaccine mandates will not be enforced while the litigation works its way through the federal appellate court system. Depending on the outcome of the litigation, the mandates may or may not be reinstated at some future date.  Employers opting not to implement mandatory vaccination policies until forced to do so should prepare for the possibility that the rules could still go into effect, and continue to monitor legal developments.

In response to the federal mandates, the Kansas legislature recently passed HB 2001, which impacts vaccine mandates and what exemptions must be considered by employers. Complicating all this, it is important to note that if the CMS mandate is reinstated by the courts, the federal rule will likely preempt the new state law. For now, however, HB 2001 most likely will only apply where the employer voluntarily implements a COVID-19 vaccine requirement for its employees.  

What Should Employers Do Now?
Kansas employers can still require the vaccine for their employees through a voluntarily implemented mandatory vaccination policy. However, if an employer is voluntarily implementing a mandatory vaccination requirement, then the employer still must grant religious and medical exemptions in order to comply with HB 2001. HB 2001 does not allow an employer to inquire into the sincerity of an employee’s request for a religious exemption after an employee provides a signed written statement evidencing that the vaccine mandate violates his or her sincerely held religious beliefs. A legal review of the protocols implemented in your workplace is strongly advised, to ensure they comply with the laws applicable to your workplace.

Employers opting to implement mandatory vaccination policies should:

  • Establish a written policy on vaccines and a protocol for handling exemption requests.
  • Determine how you will enforce the protocols.
  • Evaluate your current situation.  How will employees react to the vaccine mandate?  What are the current vaccination rates?  Will you face employee retention issues?  Is there a need for incentives for vaccination?
  • Continue providing information to employees on vaccines and their safety and effectiveness.
  • Many employees may assume the federal rules are overruled permanently.  Be prepared to clearly and transparently communicate with your employees as the situation continues to evolve.
  • Carefully create and build your process for evaluating requests for medical and religious exceptions.

How Should Employers with Mandatory Vaccination Policies Handle Religious Exemption Requests?
The best practice for handling religious exemptions is to develop a standardized request form, tailored to your approach as an employer, that asks the questions through which an employee can articulate their beliefs and explain how they conflict with the vaccine requirements.  Whether preparing for resurrection of the CMS rule, or managing a voluntarily implemented mandatory vaccination policy, correctly handling exemption requests is critical.  To avoid liability from worker lawsuits, employers should avoid delving too deeply into the claimed religious beliefs of individuals when they raise religious objections to mandatory vaccines, and err on the side of granting all requested exemptions where employees are willing to fill out a form affirming their religious belief. Generally, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs, including those that are non-traditional or unfamiliar to the employer.  An employer should, in most cases, refrain from assessing an employee’s credibility with respect to stated sincerely held religious beliefs.

If an employer has an objective basis for questioning either the religious nature or the sincerity of the particular belief, the employer may, in limited situations, be justified in making a limited factual inquiry and seeking additional supporting information.  But it is a high standard to prove insincerity of an employee’s stated belief, and a fact-based intensive analysis that relies on mostly circumstantial evidence.  What matters is whether a worker’s belief is religious, not whether it deviates from their church’s doctrine or makes logical sense to the employer.

Because this is a fluid situation, please remain alert for further legal developments regarding vaccine mandates.  As always, a legal review of the policies and protocols implemented in your workplace is strongly advised, to ensure they comply with federal and state law.
 
 
Longtime KMS member Dr. Bill Clifford to serve in legislature
Bill Clifford, MD — a Garden City ophthalmologist — was recently elected by the Finney County GOP to the Kansas House, District 122, to serve the remainder of Rep. Russ Jennings’ term, which expires at the end of 2022. Rep. Jennings died on Oct. 27.
 
Dr. Clifford has been a KMS member since 1995 and has served in leadership positions, including on the KMS Legislative Committee and the Kansas Medical Political Action Committee (KaMPAC). He has also served as Finney County Commissioner.


Physician Leaders Forum
Building on the information shared during the Physicians Leaders Forum in June, this virtual session will focus on physician resilience and wellbeing in a post-COVID environment. A panel discussion will highlight strategies currently being used in Kansas to address physician and health care worker resilience. This event—co-presented by KMS and the Kansas Hospital Association—will be from noon to 1:15 p.m. on Dec. 14, 2021. More information and free registration here: www.kmsonline.org/PhysicianLeadersForum.

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If you have questions about this update or other matters, please contact KMS Executive Director Rachelle Colombo: This email address is being protected from spambots. You need JavaScript enabled to view it..