MEMO RE: PENDING COVID-19 ISSUES

Larry Landon, PHPA Executive Director | September 13th, 2021

Gentlemen,

 

I certainly hope this correspondence finds you and your loved ones safe and well. 

 

Recently, some Players have raised objections to the possibility of mandatory vaccinations and other COVID-19 restrictions. These concerns involve the greater hockey community and more specifically the PHPA as it pertains to the upcoming 2021-22 Season. With the assistance of our attorneys, Elyse Heid and Bob Riley, I want to provide you with more information regarding these issues. I also want to update you on the NHL-NHLPA COVID-19 Protocol and the status of potential restrictions with the AHL and ECHL regarding Return to Play Protocol proposals.

 

Delta COVID-19 Variant

The Delta variant is now the predominant strain of the COVID-19 virus in North America. It is dangerous and highly contagious. Its surge is a factor in the push for vaccinations and employment restrictions.

 

Vaccinations are Approved

On August 23, 2021, the United States Food and Drug Administration (FDA) fully approved the Pfizer/BioNTech coronavirus vaccine for individuals 16 years and older. Despite allegations to the contrary, this vaccine is not experimental and it is certainly not illegal. The same is true with respect to the pending FDA approvals for the Moderna and Johnson & Johnson vaccines. Full approvals are expected shortly. FDA approvals are considered the gold standard for medication approvals in North America. It is estimated that over 250 million dose administrations of the Pfizer/BioNTech vaccine alone have now taken place in the US and Canada. Overall, 177.4 million Americans and 25.9 million Canadians have been fully vaccinated. No medication is ever without risks and complications. The incidence of significant adverse complications of these vaccines is deemed low, certainly when compared to contracting COVID-19.

 

Mandatory Employee Vaccinations and Employment Restrictions are Legal

There have been assertions that vaccination requirements or restrictions are illegal and discriminatory. This is incorrect. We are governed by US and Canadian federal, state, provincial, and local laws. We are also subject to relevant court decisions. International considerations also enter this picture, notably in the rules governing US-Canada cross-border travel.

 

Court challenges to vaccination policies have raised questions of discrimination. These have largely failed. In addition, the Equal Employment Opportunity Commission (EEOC) is charged with responsibility for discrimination claims. The EEOC has stated that federal anti-discrimination laws do not prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19 so long as exemptions exist for legitimate religious beliefs, documented medical circumstances or some pre-existing disabilities. For example, at this point in time, all federal employees and members of the US military must be vaccinated absent an exemption.

 

Differences exist among the states. Some have or are in the process of legislating mandatory vaccination laws. At least three states are going in the other direction and opposing mandatory vaccination. Given that members of the hockey community must travel to any and/or all such states, these vaccination laws and restrictions could have a significant impact on Players and their employment status. The same is likely true in Canadian provinces.

 

On September 9, 2021, President Biden announced additional US vaccination requirements for employers with more than 100 employees.  These rules will potentially impact upwards of 100 million workers in the US. This could include our sport.

 

Non-Employer Vaccination Rules

In addition to the foregoing, a number of public and private venues and facilities are enacting vaccination "passport" rules. Stated simply, individuals without evidence of vaccination can be barred from certain facilities. This could include sports arenas and related facilities that may impact your employment. If an employee cannot enter a building without proof of vaccination, the employee may be unable to meet his or her employment obligations. New York City, San Jose, Buffalo, Vancouver, and other cities at the minor-league level are reportedly engaged in discussions on these issues.

 

Player Preferences

The overwhelming majority of Players at all three levels – NHL, AHL, and ECHL – wish to fully resume their careers and play in the upcoming 2021–22 season. To that end, almost all Players want to be free of any COVID-19 risks, including potential transmission from teammates or other team contacts, and these Players have been vaccinated. The clear majority of Players do not want their employment adversely impacted and hope that their peers feel the same way.

 

NHL-NHLPA COVID-19 Protocol

Because of the critical integration of Players and their contracts between the NHL, AHL, and ECHL, we believe that the NHL-NHLPA COVID-19 Protocol will be significant to all future discussions regarding AHL and ECHL Return to Play Protocol proposals.

 

We recently received the NHL-NHLPA COVID-19 Protocol for the 2021-22 Season. It accompanies this memo. This Protocol sets forth detailed requirements and rules for both vaccinated and unvaccinated Players. These are “no practice, no play, no pay” rules. Moreover, they restrict “Player call ups.”  Most notably, this Protocol makes it very clear that leagues from which a Player can be recalled must be following similar requirements and rules to those included in this NHL-NHLPA COVID-19 Protocol. If similar requirements and rules are not utilized in those leagues (AHL and ECHL), the Player may be subjected to unpaid quarantine periods during which they will be responsible for costs.

 

A summary of the NHL-NHLPA COVID-19 Protocol follows:

  • Missed Time:  Generally, Players who are unavailable to participate in practices or Games because of their unvaccinated status will be required to forfeit one day’s pay (1/200 of Paragraph 1 NHL Salary) for each day missed.  The exceptions are:  unvaccinated Players who have a medical reason or a sincerely held religious belief that prevents them from being vaccinated; unvaccinated Players who can show that they contracted COVID-19 out of the course of their employment as a hockey player; and unvaccinated Players who must quarantine because of being a high-risk close contact that is work-related.

 

  • NIE:  The League has agreed to meet by no later than September 17 to negotiate over whether they will agree to seek an exemption from the Canadian Government’s requirement that unvaccinated individuals must quarantine for 14 days upon entry or re-entry into Canada.

 

  • Contract Guarantee:  Vaccinated Players and unvaccinated Players who have a medical reason or a sincerely held religious belief that prevents them from being vaccinated who contract COVID-19 will be deemed to have a hockey related injury, and will continue to receive Salary for the duration of any disability.  Unvaccinated Players who can establish that their infection from COVID-19 arose during and in of the course of their employment will be eligible for salary continuation provided that they did not violate a relevant provision of the COVID-19 Protocol in so doing.  Unvaccinated Players who contract COVID-19 and who are ineligible for continuation of their salary (e.g., they contracted it outside of work) will continue to receive all other CBA and SPC benefits, including the provision of health care, insurance, and pension credits for the period of their disability.

 

  • Player Opt-Out Rights:  All unvaccinated Players, as well as those vaccinated Players who share a household with a high-risk family member, will be permitted to opt out of play for the 2021-22 Season.  The decision to opt out must be communicated to the Player’s Club by no later than October 1, 2021.  Once communicated to the Club, the opt-out decision is irrevocable.  The Player’s SPC will be tolled during the opt-out year, unless within 30 days of the Player’s decision the Club declines to toll the Contract.  No salary will be paid for the season if a Player chooses to opt out and, if the Club elects not to toll the SPC, the Player would be required to repay any signing bonus payments already paid that are attributable to this season.  Players who opt out would not be able to play this season in another league or the Olympics.

 

  • Quarantine:  Vaccinated Players will not be subject to quarantine.  Unvaccinated Players must abide by the government-imposed quarantine upon crossing the Canadian border, and may also be required to quarantine for 7 days before training camp if they travelled through high-risk areas or engaged in high-risk conduct.  In addition, unvaccinated Players will be required to quarantine for 7 days after a high-risk close contact.

 

  • Testing:  Vaccinated Players will be tested every 72 hours during training camp and through at least the first part of the Season.  On November 1, the League and the PA Medical Consultants will confer to determine whether the circumstances warrant modifying the testing requirements for vaccinated Players.  Unvaccinated Players will be subject to daily PCR testing throughout the Season.

 

  • Masks:  Vaccinated Players will not be required to wear masks inside Club facilities unless they are unable to maintain a distance of 6 feet from an unvaccinated Player.  Vaccinated Players may also be required to wear masks during team travel or at Club facilities when the Club is in an area determined by the CDC to have a high rate of COVID-19 infection.  Unvaccinated Players will be required to wear masks inside Club facilities, except when they are exercising, practicing, playing, or eating, and when they are travelling.

 

  • Off Duty Conduct:  Vaccinated Players will not be subject to specific restrictions while off-duty, whether at home or on the road.  If circumstances require (e.g., a CDC high-risk designation), Vaccinated Players may become subject to stricter protocols.  Unvaccinated Players’ off-duty activities will be subject to restrictions both at home and on the road.  They will be prohibited from dining inside restaurants or bars and must avoid all crowded environments such as theatres or large private gatherings.  While on the road, unvaccinated Players will be prohibited from dining inside or outside at restaurants and bars and from using hotel facilities open to the public.

 

  • Incremental Costs:  50% of the Clubs’ additional costs associated with being an unvaccinated Player (testing, quarantine, single room costs for ELS Players, travel costs, etc.) will be treated as Player Benefits and charged against Players’ Share.

 

As noted, these rules and requirements will impact all Players in one form or another.  Please consider them as you evaluate your personal choices and how such choices will affect your health and well-being, your career, and your teammates.

 

With respect to the foregoing Protocol, the PHPA in particular wishes to avoid Players being subjected to these COVID-19 quarantine periods. These periods will certainly cause significant hardships to Players and their teams. Roster decisions may potentially be made based on Player availability. However, avoiding such quarantine periods may not be possible given laws with rules, regulations, and requirements governing COVID-19 issues.  This is particularly true with respect to US-Canada cross-border travel.

 

Collective Bargaining

No decisions have been made at the AHL or ECHL level regarding mandatory vaccines or what rules govern vaccinated and unvaccinated Players. We anticipate reconvening our AHL and ECHL Return to Play committees soon so that we can discuss all of these issues in further detail, including any AHL and ECHL Return to Play proposals.

 

Should you have any questions or concerns, please contact me at llandon@phpa.com or call the Players Only line: 1-800-565-0716.

 

Take care, be safe, and have a great day.

 

NHL-NHLPA COVID-19 Protocol for 2021-22 Season