Q: We have a member of our administrative staff who refuses to get the COVID vaccine. However, she doesn’t qualify for a vaccine exemption. As an alternative to being vaccinated, the employee has requested that her position be 100% remote. This is not something we believe is a viable option. Are we required to comply with her request to work remotely as a reasonable accommodation to the COVID pandemic?
A: You are under no obligation to provide remote work as an option to an employee, regardless of their eligibility for a COVID vaccine exemption.
There’s been a lot of confusion surrounding vaccine requirements and vaccine exemptions in healthcare, especially with the Supreme Court’s upholding of CMS’ vaccine mandate for Medicare- and Medicaid-certified providers and suppliers. However, medical and dental practices are not affected by this mandate.
You certainly can choose to allow an employee to work remotely, but there are no national mandates that require you to do so.
Your reference to a “reasonable accommodation” applies more to those employees covered under the Americans with Disabilities Act (ADA) and doesn’t really seem to apply to the circumstance you described in your question.
Let’s say you have an employee with lupus that has been instructed by their physician not to get the COVID vaccine. Regardless of your practice’s vaccination rules, requiring this employee to get the shot could be a costly mistake. However, you are still not required to offer them remote work if the position doesn’t warrant it.
The most important thing to remember, whatever you decide, is to be consistent. Employment law is very clear that all employees must be treated the same.
Say, for example, you have two employees that perform the same function in your practice. Neither of them wants to get vaccinated. Your decision regarding remote work should apply to both of them. Failing to be consistent can open you up to an expensive and stressful employment lawsuit. And, even if you “win” your case, the money, time, and stress it will cause is barely worth it.
As an option, you might want to consider requiring your employees who don’t want to be vaccinated to get regularly tested and to wear a mask per the CMS guidelines. While there are no official guidelines from CMS for medical staff who don’t get vaccinated, CMS recommends following guidelines for testing in nursing homes and long-term care facilities. Complying with government-issued guidelines can help if you are ever forced to defend your decision.
The back-and-forth of COVID testing mandates has left you wondering what is and isn’t required for your practice. That’s where healthcare attorney, Bryan Meek, Esq., can help. In his immediately available online training, CMS Staff Vaccination Mandate: Cut Through Confusion & Comply, he walks you through, step-by-step, what you are required to do to comply with the law, and what’s optional. Sign up for this immediately available 60-minute online training today!
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