Are Employees Refusing the COVID-19 Vaccine?

By Olivia Wann, JD

With the COVID-19 vaccine available to healthcare workers, we are receiving numerous support calls and messages about employees refusing the vaccine.

Everyone is asking whether they can require employees to get vaccinated against COVID-19.

As employers, we must take into consideration the guidance issued by the Equal Employment Opportunity Commission (EEOC). Employers may wish to require or at least encourage COVID-19 vaccinations. However, policies must comply with the Americans with Disabilities Act (ADA) of 1990, Title VII of the Civil Rights Act of 1964, and other workplace laws.

As such, an employee who declines the vaccine due to a sincerely held religious belief, or a disability may be exempt from taking the COVID-19 vaccine.

If the employer mandates the vaccine as part of the employee’s continued employment, the employer must have evidence that the unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” in order to avoid an ADA violation.

Employers should conduct an individualized assessment of the following four factors to determine if there is a direct threat. This includes 1) the duration of the risk, 2) the nature and severity of the potential harm, 3) the likelihood that the potential harm will occur, and 4) the imminence of the potential harm. If there is a concern for direct threat to the practice, practice owners must consider whether a reasonable accommodation can be made, such as working remotely. This would not be the case with a clinical employee.

Obviously, there is great concern that if the employee is not vaccinated, there is risk for the health and safety of fellow team members as well as patients. My understanding is that patients are already calling offices inquiring if employees are vaccinated.

We are emphasizing the sensitivity of mandating vaccines for employees who object based on religion or a medical condition.

If a reasonable accommodation cannot be made for an employee who declines the COVID-19 vaccine due to a disability or a sincerely held religious belief, then an employer can exclude the employee from physically entering the workplace. This does not trigger automatic termination. PROCEED WITH CAUTION. Consult with your attorney to determine all the facts associated to the individual employee’s circumstances prior to dismissal of an employee. If you wish to engage myself or my associate, Allison Riley, for a legal consultation, please contact (931) 232-4529.

Many of the HR experts are advocating educating employees about the vaccine. I have included Facts Sheets for the Pfizer-BioNTech COVID-19 Vaccine and the Moderna COVID-19 Vaccine. Discuss this information with your team and encourage vaccination.

Links:
https://www.fda.gov/media/144414/download
https://www.fda.gov/media/144638/download

If you plan to mandate the COVID-19 vaccine, we suggest you develop a written policy.

Otherwise, during this emergency use of the vaccine educate your team and maintain documentation in the employee’s confidential medical record. Note whether the employee consented or denied the vaccination when it was made available.

We are anxious to learn whether or not the government will mandate the COVID-19 vaccine. At this point in time, you may prefer to make the employee vaccination voluntary or encourage vaccination through wellness programs.

If you choose to require vaccinations, employers must exercise due care in administering it suchcas the avoidance of asking any unnecessary screening questions. Keep all information confidential if you receive medical information from employees. Be prepared to engage in an interactive process with employees who request an accommodation or seek exemption from the COVID-19 vaccine for health-related or religious reasons.

In conclusion, we strongly suggest you give careful thought to mandated vaccine programs particularly for those employees who claim a religious exemption or for a medical disability.

As we receive more information from the government, we will continue to give you updates. We appreciate your office relying on us to stay informed and up to date.

Don’t forget we have our advanced OSHA and HIPAA classes coming up on March 26 th (OSHA) and April 2 nd (HIPAA) for 6 CEUs each class. Annual Audit Ready subscribers receive $100 off. We will address COVID-19 issues during the advanced OSHA course that relates to COVID-19. We want to make sure you have the knowledge and the tools to effectively manage your compliance program.