Reduce Legal Risk of Requiring COVID Vaccine for Practice Staff

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Reduce Legal Risk of Requiring COVID Vaccine for Practice Staff

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covid vaccine mandate

Mandating vaccines for your practice may or may not be your choice, but how you transition to this trend is fraught with risk if not managed correctly. Between federal regulations, state requirements, and union contracts, it’s all too easy to make a mistake that can result in crippling lawsuits and stiff penalties – unless you know how to avoid them. covid vaccine mandate.
This article doesn’t take sides as to whether you should or shouldn’t require COVID vaccine mandates for your staff in place. Instead, it will help you better identify legal and financial risk areas and provide you with advice on how you can minimize them after the decision has been made.

State-Specific COVID Vaccine Mandates covid vaccine mandate

Given the ongoing nature of this pandemic, state requirements for COVID-19 are in constant flux. Newly drafted laws may supersede this blog article by the time you read it. However, as of the date of this post, here are the top States that prohibit or require COVID vaccine mandates for healthcare workers.

To get a list of vaccination requirements for all 50 states, download this free PDF chart, State-Specific COVID Vaccine Mandates. If you’re still in doubt, check with your practice’s legal counsel.

States That PROHIBIT COVID Vaccine Mandates

  • Montana is the only state that prohibits all private employers from requiring COVID Vaccine Mandates for a vaccine approved under emergency use authorization (as these were) or undergoing safety trials. The State also prevents companies from making vaccination a condition of employment.
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  • Utah has a similar law, but it carves out an exception for medical workers that require vaccinations to perform their duties (i.e., nurse).
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  • Florida has made headlines with its ban on COVID Vaccine Mandates, but it applies to companies banning unvaccinated customers, not mandatory vaccination of employees.

States That REQUIRE Healthcare Worker Vaccination

  • The District of Columbia mandates COVID vaccination for physicians and some staffers. It includes exceptions for religious beliefs or medical conditions.
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  • Illinois requires all healthcare workers to be vaccinated or else submit to regular testing.
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  • Oregon requires vaccination for physicians and their staff, with exceptions for religious beliefs or medical conditions.
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  • Rhode Island requires all physicians, nurses, and most patient-facing workers be fully vaccinated, barring a medical exemption.
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  • Washington state requires all private healthcare workers to be fully vaccinated, with allowances for religious beliefs and disabilities.

Federal Requirements

Federal laws that prevent discrimination can have a surprisingly uncommon effect on COVID Vaccine Mandates. Here are some key Federal requirements to keep an eye on:

  • Americans With Disabilities Act (ADA). Title I of the Americans with Disabilities Act requires employers (including practices) with 15 or more staff members to make reasonable accommodations to disabled workers, so long as it doesn’t cause your practice undue hardship. Disabled employees who can articulate a good reason why the vaccine might cause them problems may require special accommodations. In this event, be sure to ask your counsel the following questions: covid vaccine mandate. covid vaccine mandate. covid vaccine mandate.
    • How do employees qualify as “disabled?”  The law’s definition tends to be quite broad, including people who are not currently, but once were, disabled, and for employees you simply think are disabled.
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    • What constitutes an “undue burden?” This phrase typically relates to the excessive expenditure necessary to accommodate an ADA request. It can also apply to spatial restrictions and “significant administrative difficulties.”
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  • Civil Rights Act (CRA). Title VII of the Civil Right Act prohibits employment discrimination for various reasons, including religious beliefs. If an employee asserts a deeply held religious opposition to getting vaccinated, you may have to make special accommodations – provided that doing so isn’t an undue burden for your practice. The law applies to practices with 15 or more employees.

Note: Sign up to receive notifications for when additional articles from this vaccine series (next one on vaccine accommodations for religious beliefs) are posted on Healthcare Training Leader’s site.

The Equal Employment Opportunity Commission (EEOC), which enforces both the ADA and the CRA, issued an update earlier this year to a set of technical guidelines it announced in 2020 for employers to follow when mandating vaccinations.

State vs. Federal COVID Vaccine Mandates

So, what should you do if State vaccine laws and Federal vaccine laws are at odds? This is where things get complicated.

When State and Federal laws contradict each other, this creates unsettled law. Theoretically, State rules can’t contradict Federal regulations (although they can exceed them). But in reality, the Federal government allows this to happen selectively (as in the case of state marijuana legislation that blatantly contradicts the Federal standard).

Bottom line there really is no answer that fits every situation when State and Federal laws don’t agree. So, if you suspect that complying with your state laws will jeopardize your federal compliance, the best course of action is to call your attorney for advice.

Union Contracts

Although not common in many practices, if your workforce is unionized, be sure to go over the contract before implementing COVID Vaccine Mandates for your staff. More than likely, you’ll have to bargain with the union to implement a vaccination mandate, although the union could waive the bargaining requirement.

Mitigating Your Risk

Once you’ve determined that there are no Federal or State regulations that stop you from requiring vaccinations for your office staff, keep an eye out for these areas of risk to ensure a smooth and orderly process:

  • Follow Your OSHA Plan. OSHA requires all healthcare providers with 10 or more employees to draft a plan for COVID-19 vaccination. Unfortunately, the Agency hasn’t given a lot of guidance regarding exactly what you should include in your OSHA Vaccination Plan. There are really no set requirements, but OSHA does offer a model plan to use as a jumping-off point for developing your practice’s plan.
    • Announce Your Policy: Be sure to give your employees adequate notice if you decide to implement a policy requiring COVID Vaccine Mandates. This will allow your staff the necessary time to comply with your requirement and request accommodations (if they choose). Two months’ notice is usually adequate.
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    • Prove Notification: It is also vital that you be able to prove that all of your staff receive a notification of the implementation of your COVID Vaccine Mandate policy. So, posting a notice on your practice’s bulletin board doesn’t cut it. Instead, you should have a document for each employee that clearly spells out your vaccination policy and keep a record of how and to whom you communicated it.
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  • Spell Out Non-Compliance Consequences. To avert a wrongful termination suit, make certain that the initial announcement warns of any and all consequences that could result from failing to comply with your mandatory vaccination notice – from regular testing to termination.
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  • Accommodate Reasonable Requests. As mentioned above, employees may request special accommodations for various reasons (i.e., religious beliefs, medical conditions, a disability). Federal law requires you to approve requested accommodations as long as they are reasonable. The benchmark for “reasonable” usually has to do with whether doing so poses an excessive burden on your practice. For example, if someone from your billing department requests to work from home vs. getting vaccinated, this may have little impact on your practice. However, if your nurse or physician’s assistant makes the same request, even with telemedicine, you may feel this will negatively impact patient care and consider it an unreasonable request.
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  • Stick to the Schedule. While extending the vaccination deadlines you set may be the nice thing to do, it can also undermine you in court if an employee sues. So, it’s best to include enough time for all of your staff to get vaccinated or file for an accommodation request in the first place and then stick to them.

If you’ve decided to implement a COVID Vaccine Mandate for your practice staff to be vaccinated against COVID-19, it can quickly result in a legal and financial nightmare – unless you know how to avoid the risks. Check out the following online training course from employment law attorney, Tracy Billows, JD: “Employee Vaccine Requirements: Protect Your Staff, Practice & Patients.” This 60-minute online training (that is immediately accessible) will guide you through the various Federal and State vaccination requirements that you must know about to avoid an expensive legal dispute regarding staff privacy or employment rights. Sign up for this valuable online training today!


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