OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 218 Bill Analysis
134th General Assembly
Click here for H.B. 218’s Fiscal Note
Version: As Passed by the House
Primary Sponsor: Rep. Cutrona
Effective Date:
Paul Luzzi, Attorney
Elizabeth Molnar, Attorney
SUMMARY
Student and employee medical requirements
Generally prohibits a school, institution of higher education, or employer from requiring
a student or employee to receive any of the following that has not been issued a
biologics license or otherwise granted full approval by the federal Food and Drug
Administration: a vaccine, drug, biological product, or form of genetic immunotherapy
that utilizes messenger ribonucleic acid, deoxyribonucleic acid, or other genetic vaccine
technology.
If a school, institution, or employer requires a student or employee to receive such a
vaccine, drug, product, or immunotherapy that has been issued a biologics license or is
otherwise fully approved, permits the student or employee to satisfy the requirement
by receiving either that vaccine, drug, product, or immunotherapy or one that is
available under emergency use authorization (EUA).
Establishes for a student or employee the following exemptions from the requirement:
medical contraindications, natural immunity, and reasons of personal conscience
(including religious convictions).
Requires a student or employee to submit a written statement to claim an exemption,
with additional requirements for an exemption based on medical contraindications or
natural immunity.
Allows a student or employee to seek relief in the event of a violation, including bringing
a mandamus action and, in the case of an employee, an employment discrimination
claim.
Sunsets the bill’s provisions regarding student and employee medical requirements on
September 30, 2025.
November 23, 2021
Office of Research and Drafting LSC Legislative Budget Office
Workers’ compensation and employer-mandated medical
requirements
Specifies that an injury caused by receiving an employer-mandated COVID-19 vaccine is
an injury under the Workers’ Compensation Law.
Prohibits, for claims arising during the period beginning on the bill’s effective date and
ending September 30, 2025, a person from receiving workers’ compensation for an
injury caused by an employer-mandated vaccine that utilizes mRNA, DNA, or other
genetic vaccine technology if the person receives compensation under the National
Childhood Vaccine Injury Act or the Public Readiness and Emergency Preparedness Act.
Vaccine passports
Prohibits an individual from being required to show proof of vaccination against
COVID-19 for any reason, including to enter a facility controlled, operated, or owned by
a public or private entity or to receive a service provided by the public or private entity.
Permits a court to award attorney’s fees to the prevailing party in any action to enforce
the above prohibition.
Emergency medical technicians – COVID-19 tests
Permits emergency medical technicians who have received proper training to
(1) administer COVID-19 tests and (2) collect and label test specimens.
Qualified civil immunity
Extends through June 30, 2023, the provisions of H.B. 606 of the 133 rd General Assembly
granting immunity for exposure to or transmission or contraction of certain
coronaviruses.
Grants temporary qualified immunity from September 30, 2021, through June 30, 2023,
to specified health care providers (including hearing aid dealers and hearing aid fitters)
providing health care services, emergency services, first‐aid treatment, or other
emergency professional care as a result of and in response to an outbreak of certain
coronaviruses.
TABLE OF CONTENTS
Student and employee medical requirements ............................................................................... 3
No FDA approval – prohibition .................................................................................................... 3
Note on full approval, biologics license, and emergency use authorizations ........................ 4
Licensed or fully approved vaccines, drugs, biological products, and forms of genetic
immunotherapy required by schools and employers ............................................................ 4
Exemptions ............................................................................................................................. 4
State and federal law relating to discrimination .................................................................... 5
Claiming an exemption ........................................................................................................... 5
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Medical contraindications – bona fide physician-patient relationship .................................. 5
Natural immunity ................................................................................................................... 6
Reasons of personal conscience ............................................................................................. 6
Confidentiality ........................................................................................................................ 7
Participation in K-12 activities ..................................................................................................... 7
Costs of mitigation measures ...................................................................................................... 7
Collective bargaining ................................................................................................................... 7
Employee and student remedies ................................................................................................ 7
Sunset clause ............................................................................................................................... 8
Workers’ compensation and employer-mandated medical requirements .................................... 8
Vaccine passports ........................................................................................................................... 9
Emergency medical technicians – COVID-19 tests ......................................................................... 9
Qualified civil immunity ................................................................................................................ 10
Severability.................................................................................................................................... 10
DETAILED ANALYSIS
Student and employee medical requirements
No FDA approval – prohibition
The bill prohibits each of the following entities from requiring a student or employee to
receive certain vaccines, drugs, biological products, or forms of genetic immunotherapy for
which the federal Food and Drug Administration (FDA) has not issued biologics licenses or
otherwise granted full approval:
A public school;
A chartered nonpublic school;
A private college;
A state institution of higher education;
An employer.1
The bill applies to any vaccine, drug, biological product, or form of genetic
immunotherapy that utilizes messenger ribonucleic acid (mRNA), deoxyribonucleic acid (DNA),
or other genetic vaccine technology.
However, an employer that conducts research on, develops, handles, administers,
transports, or stores infectious organisms as a regular part of its business but is not a hospital
may require an employee to receive a vaccine, drug, biological product, or form of genetic
1 R.C. 3792.05(B) and 3792.07(B).
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immunotherapy utilizing mRNA, DNA, or other genetic vaccine technology that has not been
issued a biologics license or otherwise granted full approval.2
Note on full approval, biologics license, and emergency use
authorizations
The bill specifies that neither a biologics license nor full approval is the same as
emergency use authorization (EUA) granted by the FDA.3
In the case of a vaccine, to receive full FDA approval, the vaccine’s manufacturer must
submit to the FDA a Biologics License Application.4 At present, the Pfizer-BioNTech COVID-19
vaccine has been issued a biologics license (under which the vaccine may be marketed as
Comirnaty) and EUA, while the Moderna and Jannsen (Johnson & Johnson) COVID-19 vaccines
are available, but only under EUA.
Licensed or fully approved vaccines, drugs, biological products, and
forms of genetic immunotherapy required by schools and employers
If a school, institution of higher education, or employer requires a student or employee
to receive a vaccine, drug, biological product, or form of genetic immunotherapy that
(1) utilizes mRNA, DNA, or other genetic vaccine technology and (2) has been issued a biologics
license or otherwise granted full approval, the bill permits the student or employee to satisfy
the requirement by receiving either that vaccine, drug, product, or immunotherapy or one that
has been granted EUA against the same disease.5
Exemptions
The bill exempts a student or an employee from the requirement described above for
any of the following reasons:
Medical contraindications;
Natural immunity;
Reasons of personal conscience, including religious convictions.
These exemptions are not available to a student who, as part of the student’s course of
study, undergoes instruction or training at either of the following owned or operated by, or
affiliated with, an institution of higher education:
A children’s hospital;
An intensive care or critical care unit of a hospital.
2 R.C. 3792.07(F).
3 R.C. 3792.05(B) and 3792.07(B).
4 42 United States Code (U.S.C.) 262.
5 R.C. 3792.05(C) and 3792.07(C).
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Similarly, the exemptions are not available to an employee employed in a children’s
hospital or a hospital intensive care or critical care unit.
The bill requires an institution of higher education to make a good faith effort to provide
equitable instruction and training to a student who refuses a COVID-19 vaccine and who cannot
claim an exemption. An employer also must make a good faith effort to provide equitable
employment to an employee who refuses a COVID-19 vaccine and who cannot claim an
exemption.6
State and federal law relating to discrimination
The bill states that it does not limit, diminish, or affect limitations on state and federal
law relating to employment discrimination, or, with respect to students, federal law governing
discrimination.7 For example, Title VII of the Civil Rights Act of 19648 (Title VII) and the
Americans with Disabilities Act9 (ADA) are federal laws prohibiting employment discrimination
based on an individual’s religion and disability, respectively. And the Ohio Civil Rights Law and
the rules adopted under it regarding disability and religious discrimination are similar to Title VII
and the ADA.10
Claiming an exemption
In addition to authorizing exemptions, the bill establishes how a student or employee
may claim one. With respect to medical contraindications, the bill requires the student or
employee to submit to the school, institution of higher education, or employer a written
statement signed by a physician who has a bona fide physician-patient relationship with the
student or employee. For reasons of personal conscience, including religious convictions, the
student or employee must submit a written statement. A student or employee is not required
to submit any additional information beyond the written statement to claim either of these
exemptions.11
Medical contraindications – bona fide physician-patient
relationship
To be eligible to sign the written statement that a student or employee must submit to
claim an exemption for medical contraindications, a physician must have a bona fide physician-
patient relationship with the student or employee. Such a relationship is established if all of the
following are the case:
The physician has conducted an in-person examination of the student or employee;
6 R.C. 3792.05(C) and (E) and 3792.07(C) and (F).
7 R.C. 3792.05 (E) and 3792.07(F).
8 42 U.S.C. 2000e-2.
9 42 U.S.C. 12101 et seq.
10 R.C. 4112.01 and 4112.02, not in the bill; Ohio Administrative Code Chapter 4112.
11 R.C. 3792.05(D) and 3792.07(D).
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The physician has reviewed the student’s or employee’s medical history;
The physician expects to provide care to the student or employee on an ongoing basis;
The student or employee expects to receive care from the physician on an ongoing
basis.12
Natural immunity
In the case of an exemption for natural immunity, the student or employee must submit
to the school, institution, or employer written documentation that the student or employee has
been tested for the presence of antibodies against the same disease. The test must be in a form
or manner recognized by the medical community. And the results must demonstrate that, at
the time of testing, the student or employee had antibodies in an amount at least equal to or
greater than those conferred by a vaccine, drug, biological product, or form of genetic
immunotherapy utilizing mRNA, DNA, or other genetic vaccine technology for which the FDA
has issued a biologics license or otherwise granted full approval.
The bill requires the Ohio Department of Health (ODH) to adopt rules establishing the
frequency with which a student or employee must be retested for the presence of these
antibodies. In adopting the rules, ODH cannot require retesting more than once per year. Until
the rules are adopted, however, the student or employee is not required to submit any
additional information beyond the initial written documentation.13
The bill does not specify how the standard of a test that is “recognized by the medical
community” will be determined. Additionally, it is unclear how a school, institution, or
employer would make the determination that a student or employee’s antibody levels meet or
exceed those conferred by a vaccine, drug, biological product, or form of genetic
immunotherapy utilizing mRNA, DNA, or other genetic vaccine technology, as the bill does not
require ODH to adopt rules on this topic.
A student or employee who is exempt based on natural immunity is responsible for any
costs or fees associated with demonstrating natural immunity to the school, institution of
higher education, or employer.14
Reasons of personal conscience
A school, institution of higher education, or employer must honor and accept a personal
conscience exemption once a student or employee submits the written statement necessary to
claim it. A school or institution cannot expel a student, and an employer cannot terminate an
employee’s employment, because the exemption was claimed.15
12 R.C. 4731.77.
13 R.C. 3792.05(D) and 3792.07(D).
14 R.C. 3792.05(F) and 3792.07(E).
15 R.C. 3792.05(D) and 3792.07(D).
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Confidentiality
Under the bill, a written statement or document submitted to claim an exemption is
confidential, is not a public record, and may be shared by a schoo