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You want to get the Covid19 vaccine to better protect your patients, family members and the general public, and you want your employees to follow suit. You’ve been authorized by your government agency to make an appointment for you and your team to get the vaccine. However, some employees decide they are scared to get the vaccine, scared of needles, have some conspiracy theories about the vaccine, have religious reasons not to get the vaccine and/or just plain don’t want to get it for any reason. What should you do? This discussion warrants a brief history review of the legalities of mandatory vaccines and the most recent update from the Equal Employment Opportunity Commission (EEOC). Individual states may have rules that supersede the EEOC, please contact your own attorney prior to making any decisions.
This is obviously a sensitive topic and there is a lot of mis-information shared on social media about the validity of mandating vaccines in your business. Let’s start at the beginning.
Vaccine /vak’sēn/ - noun - a substance used to stimulate the production of antibodies and provide immunity against one or several diseases, prepared from the causative agent of a disease, its products, or a synthetic substitute, treated to act as an antigen without inducing the disease (5).
At some point in our lives, we have probably been given a vaccine. Most children are given the measles-mumps-rubella (MMR) vaccine starting at ~12 months of age. The influenza vaccine is recommended about once a year. After the initial tetanus vaccine, a booster is recommended every 10 years. There are many other vaccines, which can be found on the Centers for Disease Control and Prevention (CDC): https://www.cdc.gov/vaccines/vpd/vaccines-list.html As parents, we have control over our childrens’ health and well-being. As employers, it gets trickier. In fact, Title VII of the Civil Rights Act of 1964 states that an employer may need to excuse an employee from a mandatory vaccine policy under the religious accommodation under the ADA and/or a medical issue that prevents them from getting a vaccine. In these circumstances, an employer has the right to request documentation/proof from their employee regarding their religious affiliation and a reason for the accommodation. In 2018, the Eight Circuit held that an employer had the right to terminate a healthcare worker for declining to get the MMR vaccine due to the employee’s alleged chemical insensitvities.(1) The court ruled there was insufficient evidence that her condition was not an Americans with Disabilities Act (ADA) disability. In this situation, the burden of proof was not evident.
In March 2020, the EEOC issued guidance that stated that an employer may require all employees to get the influenza vaccine but that an employee may be entitled to an exemption under the disabilities clause. If the employee declines to get a mandatory vaccine, the employer may claim that the employee not getting the vaccine can cause an undue hardship to the employer and/or business. For healthcare businesses workers, the inability to see their patients would cause undue harm to the business.
Well, what about the elephant in the room…the Covid19 vaccine? In December 2020, the EEOC stated that employers can implement and enforce mandatory Covid19 vaccine policies with specific exceptions (2). Thus, as an employer, you may require your employees to get the Covid19 vaccine as a condition of continued employment, making sure to follow the religious and medical guidelines (3) stated above, and can exclude employees from the workplace until they have received the vaccine.
So…now that we know we CAN institute a mandatory vaccine policy, a broader question is SHOULD we institute a mandatory vaccine policy?
On the macro, doctors/healthcare workers have direct face-to-face care and/or direct contact with patients, it is imperative that we vaccinate ourselves and be as safe as possible for our patients. Most recently, the American Medical Association (AMA) Council on Ethical and Judicial Affairs report in November 2020 stated that doctors “have an ethical responsibility to encourage patients to accept immunization when the patient can do so safely, and to take appropriate measures in their own practice to prevent the spread of infectious disease in health care settings.” (4) It goes on to state “Physician practices and health care institutions have a further responsibility to limit patient and staff exposure to individuals who are not immunized, which may include requiring unimmunized individuals to refrain from direct patient contact.” Albeit a bold statement, the message is clear by the AMA to their members, get vaccinated or be in violation of ethical rules.
Maybe this is clear for providers, however within our four-wall/businesses/clinics, what about your employees? Although you could institute a ‘mandatory vaccine or stay home’ policy, it is imperative to be mindful about how a mandatory policy will affect your business, team morale and even potential retaliation (legal or otherwise). Additionally, if you implement a policy (and amend your current policy and procedures (P&P) it should be repeating, involving your attorney is highly, highly recommended. Perhaps, a first step could be to identify which employees have direct patient contact. Then the decision is ultimately up to you (the employer) and the law, to decide how to handle the rest of the employees. *It should be noted that you may not terminate the employee for refusing to get a vaccine.
If you choose to enforce a mandatory vaccine, but some of your employees do not get the vaccine, here are a couple of considerations. For those employees who are not willing to get the vaccine for any reason, you may choose to have them work from home or create reasonable accommodations within your business with extra Personal Protective Equipment (PPE) including strict sanitizing protocols. In addition to this, a comprehensive liability waiver could be drafted up. An employer could make it so difficult for someone to work in the business that they could be guilted into getting the vaccine… However, instead of focusing on a negative motivation, educating your employees about the importance of getting vaccinated could lead to a better and less hostile outcome. At the end of the day, protecting your team, your business, your patients and your families takes the highest priority!
For more information, contact your attorney!
1. Hustvet v. Allina Health Systems https://Hustvet v. Allina Health Systemscasetext.com/case/hustvet-v-allina-health-sys-1 2. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws 3. https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation