MHA COVID-19 Vaccine Resource Guide

EEOC Guidance

The Equal Employment Opportunity Commission issued guidance to employers considering COVID-19 vaccine requirements. An employer may mandate staff be vaccinated but must comply with the Americans with Disabilities Act and Title VII of the Civil Rights Act. Individuals who do not get vaccinated because of a disability or sincerely held religious belief may be entitled to an accommodation unless it results in undue hardship on the employer.

Under the ADA, an employer must determine whether an employee who declines to be vaccinated poses a “direct threat” to the health or safety of others. A direct threat is a significant risk of harm that cannot be mitigated through a reasonable accommodation. ADA accommodation requests must be reviewed on a case-by-case basis; therefore, the employer first must determine whether the employee poses a direct threat. If the individual’s job function naturally distances him or her from others in the workplace or requires consistent use of personal protective equipment when interacting with others, the employee may not pose a direct threat. In the event the individual is deemed to pose a threat, the employer then must determine if there is an accommodation that would reduce or eliminate that threat. This could include requiring the person to wear a mask or don other forms of PPE, erecting barriers, reassigning employees to vacant workstations or other forms of social distancing, teleworking, or modifying work schedules to minimize contact with others.

Some accommodations may be temporary. For example, employers may allow pregnant women to decline vaccination until they give birth. Vaccine policies should clearly inform employees of expectations for receiving the vaccine once the accommodation has ended, including the timeframe for compliance with the vaccine requirement.

With respect to accommodations for religious reasons, the EEOC defines religion broadly to include moral or ethical beliefs, which may or may not be associated with a mainstream religion. It encourages employers to assume requests for a religious accommodation are based on sincerely held beliefs. An employer must have an objective basis doubting the religious nature or authenticity of an accommodation request to seek supporting documentation. For example, if an employee objects to receiving a COVID-19 vaccine on religious grounds but previously has been vaccinated against influenza, the employer may ask the employee to explain how their religious belief accommodates one vaccine but not the other. Under Title VII, an accommodation causes undue hardship to the employer if it imposes more than a minimal burden or cost. This is a less stringent standard than under the ADA. Because religious beliefs can vary widely, it is good practice to have a standard process for evaluating requests for religious accommodations, such as having a single decision-maker for all requests.

The EEOC guidance for requiring workforce vaccination against COVID-19 essentially is the same as for mandatory influenza vaccination policies. Hospitals that already mandate the flu vaccine can easily adapt their current policies to include the COVID-19 vaccine. Hospitals that adopt mandatory vaccination policies should ensure those policies are applied consistently to all employees. Excusing key employees or top talent from vaccine requirements due to fear they will leave their post can lead to accusations of discrimination.

Documenting Requests to Decline Vaccination

When an individual declines vaccination for disability-related reasons, an employer can request the same information it would for any other accommodation request – documentation from a health care provider describing the nature of the disability, how it affects one or more major life activities and prevents the individual from receiving the vaccine, and whether the condition is permanent or if the employee can be vaccinated in the future.

With respect to religious accommodations, an employer’s ability to request documentation of a religious belief or affiliation is limited to circumstances when the employer has an objective basis to believe the request is insincere. For example, if the employee claims he or she does not believe in vaccines for religious reasons but previously received a flu vaccine without objection, the employer could ask for additional documentation. The EEOC cautions that an employer should not insist that documentation come from clergy – it can be from a third party with knowledge of the individual’s belief. As noted above, an employer does not need to accommodate a religious belief that imposes more than minimal burden or cost.

Collective Bargaining Requirements

Vaccine mandates have implications for union activity, as well. Employees who oppose vaccine requirements may be more inclined to seek unionization. Under Section 7 of the National Labor Relations Act, employees have the right to engage with one another to discuss the terms and conditions of employment. In the context of vaccines, employees have the right to protest an employer’s vaccine requirement (or the lack of one) without fear of reprisal.

If the employer is subject to a collective bargaining agreement, the language of the CBA will dictate whether the employer may unilaterally require vaccination. Generally, terms and conditions of employment are subject to mandatory bargaining; however, the ability to impose certain policies may be conferred to management if the terms of the CBA waiving those rights are “clear and unmistakable.” Virginia Mason Hosp., 358 NLRB 531, 535 (2012). Such terms generally are found under the management rights section of the agreement. Hospitals with a union presence should consult the specific language of their CBA to determine if the right to unilaterally impose workforce safety policies, such as mandatory vaccination, has been conferred to management.

Since only certain job titles are likely to be unionized in a hospital, those employers may be faced with the ability to impose a vaccine requirement on nonunion employees only, at least in the short term. In that event, the hospital also may impose different safety measures on vaccinated versus unvaccinated staff, which may incent union staff to get the vaccine. The EEOC has cautioned that incentives should be de minimis as to not be coercive. Employers also must be mindful of discriminating against staff who cannot receive the vaccine for legitimate reasons. The more valuable the incentive, the more likely an employee who declines to be vaccinated due to disability or religious belief can claim discrimination.

Contractors and Vendors

Some hospitals also require contractors and vendors to be vaccinated to enter the facility. An employer does not have to accommodate independent contractors under Title VII or the ADA; however, any agreements with outside contractors or vendors should be reviewed to ensure there are no limitations on the ability to impose a vaccine requirement. A hospital and staffing agency are considered joint employers and have shared obligations to ensure workplace safety for contract workers. Mandatory vaccinations are one way an employer can meet its duty to reduce workplace hazards and mitigate against COVID-19.

Vaccine requirements and the responsibilities of each employer should be clearly set out in the agency contract. This may require the amendment of existing agreements to ensure the hospital is able to impose its vaccine policy on independent contractors who work in the facility. For contractors and vendors who have not yet been retained, vaccine policies should be included in the agreement. Hospitals that contract for health care staff, such as locum tenum physicians or agency nurses, should consider alignment of their policies with respect to employees and independent contractors to guard against claims of unequal treatment and loss of morale.

Litigation

A number of lawsuits have been filed by employees contesting mandatory vaccine policies. They raise similar claims, alleging that 21 U.S.C. § 360bbb-3(e)(1)(A) requires an individual be provided the opportunity to decline a treatment subject to an EUA and that compelling an individual to submit to an experimental drug violates the Nuremberg Code. Some plaintiffs cite to the coercive nature of mandates and claim a violation of the constitutional right to substantive due process, especially when those mandates are imposed by governmental entities.

One of the suits filed against a Texas hospital has been dismissed on the grounds the employees could not state a claim for wrongful termination under Texas law. The opinion further concluded the federal law cited by the plaintiffs is directed to the Secretary of HHS and not private employers that require vaccination as a condition of employment. The court cited the EEOC guidance, indicating an employer may require vaccination against COVID-19. The plaintiffs are appealing the dismissal of the Texas case.

An Indiana judge declined to issue a preliminary injunction against Indiana University’s mandatory vaccination policy. The court ruled that vaccine mandates imposed by public entities must bear a rational relation to a legitimate public health concern. While the case remains pending for a final decision on the merits, it is the first decision upholding the right of a governmental body to require COVID-19 vaccination.

Legislation

Numerous state legislatures considered bills in 2021 that would bar employers from requiring the COVID-19 vaccine as a condition of employment. House Bill 838 was introduced in the Missouri General Assembly and would have barred public employers from imposing vaccine requirements. Legislation was passed in Arkansas and Utah prohibiting governmental employers from requiring vaccination, and a bill enacted in Montana bars any employment action based on vaccine status. As additional employers adopt mandatory vaccination policies, additional bills likely will be filed in upcoming legislative sessions. Six Republican senators recently requested Gov. Parson call a special session to allow the enactment of legislation restricting or barring vaccine mandates. The governor is unlikely to do so, previously having expressed an unwillingness to direct the policies of private businesses.

The EEOC counsels that vaccine status should be maintained as confidential medical information and therefore should be limited to supervisors responsible for ensuring their reports are following any safety protocols or mitigating measures imposed on nonvaccinated staff. To satisfy EEOC guidance, hospitals should not require public indicia of vaccine status; however, providing vaccinated staff the opportunity to wear a sticker or other means of touting that they are vaccinated is permissible. Similarly, patients who request care only from vaccinated staff must be told that employees are entitled to maintain confidentiality of their medical status.

As described more fully in the next section, any hospital that requests staff verify their vaccine status must keep all medical information associated with the administration of the vaccine confidential, including responses to screening questions. The verification process is best managed through human resources.

Employee Vaccination Records

The ADA restricts an employer’s ability to require medical exams or ask employees about existing disabilities. The EEOC guidance confirms that vaccine administration is not a medical exam, but any screening questions asked before inoculation may elicit information about an employee’s disability. Employers that mandate and administer vaccines must demonstrate that any screening questions are “job-related and consistent with business necessity.” If the employer can show that an employee who refuses to answer the screening questions poses a direct threat to workplace health and safety if he or she is not vaccinated, it can impose the conditions of its vaccination policy.

When vaccination is voluntary, the employer does not need to justify screening questions, but cannot harass or punish employees who choose not to participate in voluntary vaccination programs. If a hospital allows employees to see any vaccinator of their choice, screening questions do not implicate the ADA because the information is not being sought by or on behalf of the employer.

Mitigation Measures

Whether a hospital elects to require or encourage vaccination against COVID-19, it may wish to impose different safety protocols or mitigation measures on unvaccinated staff. Such measures may include masking in all areas of the facility, physical separation of workspaces where possible and regular testing for the presence of the SARS-CoV-2 virus. CDC guidance for testing of health care workers suggests that testing of asymptomatic staff only is recommended for nursing home staff but is permissible for employees of other facilities if resources permit. If an employer plans to regularly test unvaccinated, asymptomatic workers, the CDC suggests doing so no less than weekly to avoid missing those who become infected between tests. With the current circulation of the Delta variant and some increase in breakthrough infections, only testing unvaccinated staff may not prove to be the most effective mitigation strategy.

Employee Education

Whether a hospital elects to mandate vaccination or not, some staff will be hesitant to receive the vaccine. Vaccine hesitancy can occur for numerous reasons. Some employees may have a general mistrust of the government, leading to fears the vaccines are not safe because they were rapidly approved. Others may be suspicious because they are offered free of charge. Some employees may have skepticism about vaccines in general. Staff may have legitimate concerns about side effects or the fact that there has been insufficient time to study potential long-term effects. Others may be fueled by misinformation, which is readily available on the internet and social media platforms. Even though an employee may believe false information, his or her beliefs likely are sincere. Lecturing or shaming individuals with unorthodox views about the vaccine is unlikely to reduce hesitancy.

Hospitals should pay particular attention to their diversity, equity and inclusion policies when considering vaccine mandates. Communities of color have been disproportionately affected by COVID-19 due to vaccine distribution issues, health care access and the complicated logistics surrounding short supplies in the early rollout of the vaccines. Many Black Americans distrust institutions in general, and the medical system in particular, because of the history of unethical experimentation on minorities. Many people who were unsure of the safety and efficacy of the vaccines waited to be vaccinated until a sufficient number of family and friends were inoculated without an adverse outcome. Fewer people of color have received the vaccine; therefore, there have been fewer friends and family to observe. Hospital leaders should be sensitive to vaccine education and the particular concerns of these employees.

Communications with employees about COVID-19 vaccines should be factual and respectful. Encourage staff to seek out multiple sources of information that include legitimate organizations, such as respected research institutions and media. Listen to employee concerns and provide them with fact-based information that specifically addresses those issues. Provide a forum for open discussion about employee fears. Numerous polls show that the most trusted source of information regarding COVID-19 is one’s own health care provider. Encourage staff to contact their physician, or provide information and education through your hospital’s chief medical officer.

The Centers for Disease Control and Prevention compiled a Workplace COVID-19 Vaccine Toolkit to aid employers in educating their employees about the benefits of vaccination.

Mid-Range Planning

Experts have not determined how long a vaccinated individual retains immunity to SARS-CoV-2, although recent guidance suggests immunity wanes over time. The Biden administration recently announced plans to offer booster doses of the Pfizer-BioNTech and Moderna vaccines as soon as Monday, Sept. 20, with health care personnel who were among the first to be eligible for vaccination, prioritized for receipt of a third dose. No such plans have been announced for the Johnson & Johnson/Janssen vaccine. Hospitals should follow CDC guidance as more information becomes available regarding immunity protections from the vaccine.

CMS and OSHA Requirements

CMS and OSHA have taken actions that strongly incentivize employers to require worker vaccination. CMS included a new quality reporting program metric related to COVID-19 vaccination coverage among health care workers in its proposed rules for Hospital Inpatient, Long-Term Care Hospital, Skilled Nursing Facility, Inpatient Rehabilitation Facility and Inpatient Psychiatric Facilities for fiscal year 2022. This measure will track and incentivize hospitals to vaccinate staff. CMS is proposing an initial, shortened reporting period of Oct. 1 to Dec. 31, 2021, which will affect the calendar year 2021 reporting period/FY 2023 payment determination. If finalized, the rule will require hospitals to collect and submit the numerator and denominator for one self-selected week each month of the reporting quarter. Following the initial reporting period, CMS is proposing quarterly reporting beginning CY 2022.

OSHA issued an Emergency Temporary Standard to address workplace hazards arising from COVID-19. For hospitals subject to OSHA jurisdiction, it applies to settings where any employee provides health care services or health care support services. The ETS includes numerous requirements, including but not limited to the following.

• a workplace-specific COVID-19 plan
• patient screening and management, to include limited points of entry
• standard and transmission-based precautions
• face masks and PPE appropriate to settings and vaccination status of employees
• physical distancing of at least six feet between employees
• physical barriers at fixed workstations when employees cannot be at least six feet apart
• cleaning and disinfection
• employee screening, employer-provided testing and paid time off for employees who contract COVID-19

The ETS is effective until revised or rescinded by OSHA. OSHA provided numerous guidance documents for implementing the ETS.

Antitrust Concerns

Competitors that exchange information about the terms and conditions of employment for their respective staff can raise antitrust red flags. An agreement by several hospitals in the same geographic market to mandate COVID-19 vaccination as a condition of employment would raise such concerns because it reduces the ability of workers to find gainful employment on the terms and conditions they deem most advantageous to them. In other words, an agreement to impose vaccine requirements as a condition of employment has the effect of suppressing competition in the marketplace.

Therefore, hospitals should make decisions about their respective vaccine policies independent from one another. While it is not unlawful to impose a policy similar to a competitor’s that is publicly available, antitrust laws are implicated when competitors affirmatively agree on similar policies before disclosing them to employees and the public.