COVID-19 Vaccines: Can You Mandate Them Among Staff?
By Practice Growth May 05, 2021
More than a year into the COVID-19 pandemic, people across the globe are breathing a sigh of relief as vaccination efforts gain momentum. As an employer -- especially an employer in the healthcare industry -- you’re likely eager to get back to business as usual, and you may be wondering how (or if) you can encourage or require your employees to get vaccinated. Dealing with (and even discussing) the subject of mandating vaccination is cumbersome, at best. It’s downright dreadful at worst. In this article, we’ll touch on government regulations, legal considerations, and other issues. If you’re considering requiring COVID-19 vaccination within your practice, it’s essential you consult an attorney; ideally, one who specializes in workplace and employment law.
Is Mandating COVID-19 Vaccination for Employees Worth the Hassle?
It’s difficult to say. Having a fully vaccinated team will likely mean fewer sick days and lower subsequent healthcare costs. It’ll most certainly reduce the risk of a COVID-19 cluster within the practice and may make patients, both existing and new, feel more comfortable receiving care at your practice. That said, eliminating an employee’s autonomy in any situation is legally and morally complicated, and it can have a negative impact on morale.
According to the Society for Human Resource Management’s recent report, COVID-19 Research: The Workplace Perspective on Vaccination (2021), 60% of U.S. employees said they’ll probably or definitely get the COVID-19 vaccine once it’s available to them, so the majority of your employees will likely seek inoculation regardless of whether or not you require it. It’s worth noting, though, that 28% of respondents are willing to lose their jobs if their employer mandates vaccination.
Does the Government Provide a Framework for Mandatory COVID-19 Vaccination in the Workplace?
Both the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Occupational Safety and Health Administration (OSHA) have published guidelines to help employers and employees navigate the COVID-19 pandemic.
U.S. Equal Employment Opportunity Commission Guidelines
The EEOC has a number of clear guidelines that exist to protect employees. An existing employee, for example, can refuse an employer-mandated medical exam unless the examination is required to support an employee’s request for accommodation or the employer believes the employee may have a medical condition that could prevent them from performing job-related tasks. Asking an employee to undergo a pre-vaccination medical screening process can result in the divulgence of information about a disability, which is protected under the Americans with Disabilities Act (ADA). Prerequisite to requiring vaccination, the employer would need to “... have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”
In the event that an employee indicates that he or she is unable to receive the COVID-19 vaccination citing the ADA, the EEOC recommends that employers conduct individual assessments of each employee’s needs and risk. In this assessment, the employer should consider four factors in determining whether an employee will pose a direct threat to her or himself or someone else:
The duration of the risk. Does this person typically perform their duties at home or in a private office space where they have minimal contact with others? Are they a patient-facing worker who spends much of their time in a closed space with other people where it’s difficult or impossible to stay socially distant?
The nature and severity of the potential harm. In this situation, we know that COVID-19 is an unusually contagious viral disease that can cause severe illness or fatality.
The likelihood that the potential harm will occur. Again, COVID-19 is highly transmissible, but if your practice is located in a small, remote community where few cases of infection have occurred, the risk of potential harm may be lower than that of a practice in a bustling, urban area.
The imminence of the potential harm. It may be easier to justify mandatory vaccination when your practice is fully staffed for in-person appointments. It may be more difficult to rationalize while your employees are working alone, in private offices, and conducting consultations and assessments by telemedicine.
U.S. Occupational Safety and Health Administration Guidelines
OSHA has not provided guidelines on mandating vaccination, in particular. Under Section 11(c) of the Occupational Safety and Health Act, though, “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected.”
OSHA does recommend that employers:
Offer COVID-19 vaccines to eligible employees, free of charge
Provide training, information, and education to employees about vaccines
Provide all employees with face coverings
Refrain from differentiating between employees who are vaccinated and those who are not by requiring all employees to follow the same protective guidelines - wearing a face covering if not eating or drinking, staying physically distant, and so on
Approach With Caution - Final Thoughts
While there are no government-imposed regulations that directly prevent employers from mandating COVID-19 vaccination at this time, the situation isn’t necessarily unambiguous. Many employees will be exempted under EEOC and OSHA policies, including the Americans with Disabilities Act, religious objections, and more.
The risks to an employer who mandates vaccination are not to be taken lightly. As we touched on earlier in this article, mandatory vaccination can harm employee morale, at the very least. There are also workers’ compensation and liability risks to think about -- it’s unlikely, but possible that an employee could have an adverse reaction (immediately or in the future) to a COVID-19 vaccine.
Before you decide to mandate COVID-19 vaccination, take an objective look at how your practice fared during the pandemic - how many team members tested positive, how many sick days were utilized due to self-isolation requirements, and so on. What’s best for one practice is not necessarily best for another, and you may decide that alternative risk mitigation strategies, like asking some team members to work from home or creating an alternating practice schedule may suit your practice better than a mandatory vaccination policy.