Experts answer the top three questions medical practices have right now
As the rollout of the COVID-19 vaccine continues across the U.S., the Centers for Disease Control and Prevention (CDC) recommends healthcare personnel be among those offered the first doses of the vaccines. The CDC defines healthcare personnel as “all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials.”
However, each state has established its own version of the state guidelines, which has raised many questions and concerns, including for employers. Here, we address three of the top questions medical practices are asking right now.
1. Is an employer legally allowed to require employees to get the COVID-19 vaccine?
The short answer is yes, according to employment lawyer Tom Spiggle in Forbes. Many health care workers in hospitals, clinics and nursing homes have long been required to get certain vaccines such as the seasonal flu and the H1N1 vaccines, mandated either by employers or state laws.
In the context of COVID-19, it’s worth examining the two main exceptions to this vaccination requirement: 1) an employee’s religious belief, and 2) certain medical conditions.
The religious exemption from a state’s or employer’s vaccination requirement does not include personal or political beliefs.
The religious exemption comes primarily from Title VII of the Civil Rights Act of 1964, a law that applies to local, state and federal governments, as well as private employers with 15 or more employees, wrote Spiggle. It’s important to note that a religious belief does not include personal or political beliefs. Also, the employer does not have to allow for the vaccine exemption if providing this accommodation would constitute an undue hardship on the employer.
Given health and safety concerns of spreading COVID-19 to staff and patients, “it’s easy to imagine how a coronavirus vaccine refusal would result in an undue burden on the employer in most situations,” according to Spiggle. However, he added that there may be an acceptable accommodation depending on the nature of the job, such as allowing the employee to work from home.
The medical exemption is covered by the Americans with Disabilities Act of 1990 (ADA). An employee needs to show that they have an ADA-recognized disability that prevents them from taking the COVID-19 vaccine and, again, that this exemption does not impose an undue hardship on the employer. A common example of a covered disability in this case would be a compromised immune system.
2. Should employers require all employees to get the COVID-19 vaccine?
Even if the law gives an employer the right to require that employees receive a COVID-19 vaccine, “it may not be worth the risk to institute such a policy,” according to Spiggle. For one reason, what if an employee suffers a severe side effect from the vaccine that results in a workers’ compensation claim?
Another risk could be public backlash if employees speak out on social media, for example, about being “forced” to get the vaccine or lose their jobs. This could cost a practice patients—both those offended by your practice’s policy, as well as those fearful of exposure from potentially unvaccinated employees. Consider how contentious and politicized mask mandates became.
In lieu of mandating COVID-19 vaccinations, which carries the risk of lawsuits and backlash, legal experts advise employers to recommend their employees get the vaccine and hope that most of them do so.
“What might be best is for employers to simply recommend their employees get the coronavirus vaccine and hope most of them do so,” wrote Spiggle. He added that there’s also the possibility that states might establish a legal requirement for certain employees to get vaccinated, thereby allowing employers to avoid blame.
“If an employer plans to require its employees to get a COVID-19 vaccine, it should develop a written policy,” recommended attorney Helene Hechtkopf to the Society for Human Resource Management (SHRM).
3. What can employers do if an employee refuses to get the vaccine?
First, find out why, said Hechtkopf. If it’s not due to one of the exemptions discussed above, it may be because of fear or mistrust about the vaccine. Just as you do with your patients, educate your employees so that they have all the facts and feel good about their decision.
Many people who are wary cite the unprecedented speed at which vaccines have rolled out as one of their main concerns. Through Operation Warp Speed, the public–private partnership initiated by the U.S. government to facilitate and accelerate the development of COVID-19 vaccines, less than a year has passed from virus identification to research, production, and now distribution.
Educating wary employees, sticking to the science, leading by example, and making it as easy as possible for employees to get vaccinated are the best ways to ensure compliance.
Reassure your employees that global collaboration, a sense of urgency, and the background of vaccine development for infectious diseases such as Ebola, SARS and MERS, and massive funding accounted for this rapid pace—clinical trials were just as thorough and rigorous as for other vaccines.
“The message that, in spite of the incredible speed, safety has not been compromised in any way in developing vaccines has to be communicated to people by those with very high credibility and integrity and who people perceive as having no axe to grind,” said infectious disease physician Gitanjali Pai, M.D., to Infectious Disease News.
SHRM suggests other steps employers can take to encourage employees to get vaccinated:
- Make obtaining the vaccine as easy as possible for employees.
- Cover any costs that might be associated with getting the vaccine.
- Provide incentives to employees who get vaccinated.
- Provide paid time off for employees to get the vaccine and recover from any potential side effects.
Attorney Kevin Troutman suggested offering incentives before implementing a mandatory vaccination policy. “Communicate clearly and often with employees and help them understand how vaccinations will make for a safer workplace,” he told SHRM. “Lead by example and ensure that management takes the vaccines first.”