A recent Part B News article discusses the concerns from the employer’s point of view of making COVID vaccinations mandatory for employees. Our review indicates that at this time, that at a federal and state level no mandatory COVID vaccination law has been passed. The decision to have a mandatory COVID vaccination policy needs to be carefully thought out and discussed with healthcare counsel.

While the COVID-19 vaccination campaign expands and becomes a topic at your practice, you cannot ignore anti-discrimination and labor laws. If you want to mandate that your employees get vaccinated, make sure you are not missing a step before you declare yourself ready to dismiss those who abstain.

The arrival of the COVID vaccines, two of which have been cleared under FDA emergency use authorization (EUA). This is a significant step in the capacity to emerge from the year-long lockdowns. As health care workers are at or near the head of the line to obtain the vaccine in many states, health care facilities have been hustling to get their people inoculated.

But many Americans are balking at the vaccine and that includes health care workers. An October 2020 survey of nurses by the American Nurses Foundation found that 36% of respondents would not voluntarily accept vaccination against COVID-19. More recent polls returned similar results: On Dec. 31, the Los Angeles Times reported that in Riverside County an estimated 50% have refused the vaccine.

Vaccinations against contagious diseases are not universally required in health care settings. Some states like California require health care workers to be immunized against mumps, rubella and other such diseases. But no federal law does so — even flu shots are only “recommended” by the CDC for such workers.

Employers may require them so long as they are consistent with business necessity  and health care is one of those areas in which, objectively, an employer could argue that it is consistent with business necessity. But “there are various considerations employers should consider in deciding whether to require the vaccine.

When an employee refuses with cause for a religious objection, or a condition such as pregnancy, you may be required to “reasonably” accommodate them, if possible. You should approach their refusal carefully and conduct a careful analysis based on the employee’s rights under whatever laws apply. For example, you may have to consider the Americans with Disabilities Act, Title VII, Pregnancy Disability Act and state laws.

You should consider the following items:

• Document the request and give the employee a copy to show that you have done so.
• Find out from the employee what task the disability or religious objection is hindering or preventing the employee from doing — in this case, getting the vaccine.
• Tell the employee that the company will look for ways to accommodate.
• Explore possible accommodations with the employee based on the employee’s job duties and the problem that needs to be corrected.

You should also consider the following employee tips:

• Educate staff. Do not assume that everyone on the team has the same access to vaccine facts as you.
• Be sensitive. That is always a good idea, but especially so in such a fraught area not only to avoid discrimination charges but also for the health of your practice and good will of your employees.
• Offer incentives. You may get more employees to vaccinate with incentives, such as with gifts or days off.
• Be consistent. If you have a policy, stick to it. Reserve the accommodations for the folks who require it by lawful exemption.

We always recommend the above employee tips to clients and business contacts. It is also a good idea to get advice from your healthcare attorney regarding current federal and state law requirements.