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    Michael W. Twomey
    Michael W. Twomey, JD

    With news of effective COVID-19 vaccines rapidly progressing toward approval, now is the time for healthcare practices and providers to plan for whether and how to vaccinate their workforces.

    Patient safety is a top priority for healthcare employers, and vaccinating employees is not entirely new for organizations that require the seasonal flu vaccine. By most accounts, healthcare workers will receive priority distribution of a COVID-19 vaccine. There will be many practical considerations, such as vaccine effectiveness and duration of protection, but there are several important legal considerations for healthcare employers to consider when weighing vaccinating their workforce.

    Can a healthcare employer mandate that its employees receive the COVID-19 vaccine?

    Whether a healthcare practice should require the COVID-19 vaccine or merely encourage it is a prudential question for practice leadership. Practices should follow state and federal guidelines for providing a safe workplace for employees and patients. As a practical matter, most healthcare practices require certain vaccinations for employees, and some states actually require healthcare workers in certain settings to receive vaccinations.

    If an employer wishes to require that employees receive the COVID-19 vaccine, can the employer do so? In general, yes, an employer can require that employees receive the COVID-19 vaccine to continue working, subject to objections based on religious beliefs, a disability or other medical conditions.

    The Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) addressed workforce vaccinations a decade ago during the H1N1 (swine flu) pandemic. The EEOC’s pandemic preparedness guidance, which has been updated in response to the coronavirus, does not forbid mandatory vaccination policies if exemptions are provided for disabilities under the Americans with Disabilities Act (ADA) and for sincerely held religious beliefs under Title VII of the Civil Rights Act (Title VII). OSHA also took the position that an employer may require vaccination. However, OSHA also stated that if an employee refuses vaccination based on a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine), the employee may have certain whistleblower protections under the Occupational Safety and Health Act. As a result, if a healthcare practice decides to mandate vaccinations, it must be prepared to handle employee objections.

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    Under what conditions may an employee refuse mandatory vaccination?

    A healthcare employer must, at a minimum, consider the following objections in any mandatory vaccination program:

    1. Objections based on sincerely held religious beliefs;
    2. Objections based on a disability under the ADA; and
    3. Objections based on a reasonable belief that a medical condition creates a real danger of serious illness or death because of the vaccination.

    Title VII prohibits religious discrimination in the workplace, but it also requires employers to reasonably accommodate an employee’s religious beliefs. Title VII’s definition of religion is broad and includes not only traditional, organized religions but also new and uncommon religious beliefs — even if few or no other people adhere to it.

    Would Title VII protect an employee who held secular “anti-vax” views on vaccinations?

    In an informal discussion letter, the EEOC has previously stated that it is unlikely “religious” beliefs would incorporate secular philosophical opposition to vaccination. Religion typically concerns ideas about life, purpose and death, not social or political philosophies and personal preferences. Employers should be very wary of questioning an employee’s religious beliefs and the sincerity of such beliefs as it is a very low bar, but plainly non-religious opposition to vaccination need not be accommodated.

    If an employer receives notice that an employee’s sincerely held religious beliefs prevent the employee’s vaccination, the employer must provide a reasonable accommodation, unless it would cause more than a minimal burden on the employer’s operations. Whether an accommodation is too burdensome must be reviewed case by case and will depend on the employee’s position, the operations and the accommodation requested. For example, given the current extensive use of personal protective equipment (PPE) in healthcare practices, requiring the employee to wear full PPE instead of requiring vaccination is likely not too burdensome. However, permitting an unvaccinated employee to interact with patients without additional protections is almost certainly too burdensome due to the increased risk to patient safety. In the end, Title VII does not require an employer to provide a religious accommodation if it imposes more than a de minimis cost on the employer.

    The ADA provides similar protections to employees who have a “disability,” as that term is defined in the ADA. If the employee’s disability is not known or obvious, a healthcare practice has the right to ask for reasonable documentation about the disability and any functional limitations with respect to receiving a vaccine. If an employee has a disability that would prevent him or her from receiving the COVID-19 vaccine, an employer must provide a reasonable accommodation, which may include exemption from the vaccine requirement, unless it would be an undue hardship. Under the ADA, undue hardship means it would require significant difficulty or expense, which is a higher standard than the de minimis standard for religious accommodations. As a result, to accommodate an ADA request for exemption from the vaccine, employers should consider additional options, including requiring additional PPE, relocating the employee away from patient care areas, or temporary reassignment or leave. When assessing whether a proposed accommodation is an undue hardship, the employer should consider the nature and cost of the accommodation, the resources available for the accommodation and the employer’s operations.

    The Occupational Safety and Health Act similarly protects employees who refuse vaccination based on the employee’s reasonable belief that his or her medical condition creates a real danger of death or serious illness if vaccinated. In these situations, the employer should work with the employee to find a resolution to the employee’s concerns and consider accommodations similar to those under the ADA.

    What are some best practices for preparing and implementing a vaccination program?

    The first consideration is whether the COVID-19 vaccine will be mandatory or merely encouraged and which positions or departments should be prioritized for vaccination. If vaccination is mandatory, ensure your human resources representatives are informed of and have processes in place to handle objections to the vaccine, whether based on religious beliefs or medical conditions, as discussed above.

    • Consider what accommodations may be available to employees with legitimate objections.
    • Develop a written form for requests for exemptions to formalize the process, but keep in mind employers must make individualized evaluations when reviewing objections.
    • To maintain employee morale, consider how you can lawfully separate bona fide objections from opportunists seeking to avoid work.
    • Ensure that you are treating all employees equally and are not retaliating against employees who do voice safety concerns.
    • Healthcare practices should also be mindful of any collective bargaining obligations concerning vaccine programs, and in non-union workplaces, employers should consider how a vaccine program communicated to employees affects any union avoidance strategy. An untimely or unclearly communicated vaccination program may spur discussion of workplace safety and union organizing.

    Communicate early and often with your workforce about your vaccination program and how you intend to handle the coronavirus vaccine once it is available to healthcare workers, including which positions or departments will be prioritized. A written policy will provide protocols and standards to guide your employees in any vaccination program and provide some certainty in very uncertain times.

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