Practice Management Alert

Carefully Weigh COVID-19 Vaccination Policies

Hint: Use flu vaccination policies as precedent.

With a COVID-19 vaccination now available, you may be juggling how to implement the vaccine for your staff, including debating whether to make vaccination mandatory for the people in your employ or under your management.

However, you should tread carefully when considering a vaccine mandate.

Utilize Precedent

Knowing your policies on whether you require the flu vaccine can provide a foundation for how you approach the vaccination for SARS-CoV-2, the virus that causes COVID-19.

“Because there is no law or regulation that directly addresses this issue, employers considering a mandatory COVID vaccination policy should analyze how mandatory flu vaccination policies have been interpreted,” recommend attorneys Jan Hensel, Jacqueline Rau, and Thomas W. Hess with law firm Dinsmore & Shohl. “In the absence of state or local law to the contrary, employers may require employees to get vaccinated from the flu,” the attorneys allow in online analysis. But “the Equal Employment Opportunity Commission (EEOC) has emphasized that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine,” they say.

“An employee may also qualify for a religious exemption under Title VII of the Civil Rights Act of 1964,” the Dinsmore attorneys point out.

Mandatory vaccination may also implicate other laws, such as the Rehabilitation Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act, the EEOC says in a question-and-answer set on COVID-19 updated December 16.

Beware Potential Liability

On the other hand, employers should consider issues like liability if they don’t require vaccination — although that may be something Congress eventually weighs in on.

“There are risks and benefits attendant to both approaches,” observe attorneys with Hall Render in new legal analysis. “Does an optional vaccine policy result in increased absences due to work-related illness, workers’ compensation claims and/ or professional liability for hospital-acquired conditions that might have otherwise been avoidable? Does mandating the vaccine create new workers’ compensation risks and reasonable accommodation challenges?”

Plus: “Because either approach could negatively impact staff relations and retention during a time in which retention is critical, the employer-employee relationship will be a crucial consideration for healthcare providers during the vaccine policy planning process,” the Hall Render attorneys point out.

The EEOC does allow that “if an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace,” the EEOC says in its Q&As. But “this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities,” the EEOC points out.

“One of the challenges we’re going to be dealing with … is that there is a shadow of politics over the vaccine,” says L.J. Tan with the Immunization Action Coalition, an advocacy group that supports vaccinations. “As a result, there’s some fear about whether the vaccine can be safe, whether it can be approved appropriately. Because of that shadow, I think it’s going to be extremely difficult for an employer to make COVID-19 vaccination a condition of employment,” Tan told AARP.