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Posted by: Allison Smith Newsome on Feb 23, 2021

Though often lauded as a medical miracle, vaccinations have joined the ranks of staunchly polarizing topics. Complicating matters of polite avoidance, the objective of vaccines, to eradicate disease, sits squarely in the crossfires of a public interest versus personal autonomy balancing act. As two COVID-19 vaccines have been given emergency use authorization, employers now find themselves facing the daunting task of resolving yay or nay on requiring mandatory employee vaccinations, and if the former, how to create said policy. This article discusses the history of mandatory vaccination policies in their original birthplace as well as the legal concerns and best practices for establishing a mandatory COVID-19 vaccination policy in the workplace.

Current Practice - Justifications and Analysis

Mandatory vaccination policies in hospitals came into popularity quite recently. Just over a decade ago, in 2009, the world faced unease about another pandemic. With the discovery of the H1N1 flu virus, hospitals sought ways to bolster vaccination numbers among their ranks. At the time, many healthcare workers resisted vaccination with fewer than half nationwide receiving vaccines each year for the more common seasonal flu. Robert Field, Mandatory Vaccination of Health Care Workers Whose Rights Should Come First, P&T Journal, NCBI, Nov. 2009. Voluntary vaccination programs had been the standard for decades and unions opposed vaccination mandates from their first suggestion. But the concern raised by this new adversary spurred debate for a change. Described by scientists as “highly contagious, […] infected people can spread the virus for several days before they even know they have it,” H1N1 touted striking similarities to the coronavirus we battle today. Id. Since that pandemic, mandatory vaccination policies have become much more commonplace amongst healthcare employers with 44.2% of healthcare providers reporting that vaccination was required at their workplace in the Centers for Disease Control and Prevention’s (CDC) 2019 survey. Influenza Vaccination Coverage Among Health Care Personnel — United States, 2019–20 Influenza Season, CDC, 2020.

Most states, including Ohio, abide by the doctrine of employment-at-will, under which employers may terminate a worker for any reason save a prohibited motivation, such as race or disability status. Pursuant to this doctrine and in the absence of a proscribed rationale or collective bargaining agreement negotiated with a union, vaccination can be used as a condition of continued employment. Robert Field, Mandatory Vaccination of Health Care Workers Whose Rights Should Come First? P&T Journal, NCBI, Nov. 2009.

But should it be? Should employers wield the power to determine whether an employee, for whom they cannot guarantee lifetime employment, absorb a substance bringing lifelong physical alterations? Should health care workers have less freedom than others to decide what health risks they choose to accept simply by choosing their profession? The prudent path to answering these reservations involves a weighing of the interests and risks. “Studies have shown higher patient death rates in hospitals with a smaller percentage of vaccinated employees.” Id. Begging the question, should the freedom of workers to make decisions regarding their own health carry less weight than the well-being of people who depend on them for care? The answer to that query must consider the risks of vaccination, which can never be entirely known, against the protection of the vulnerable. Typically, the peril of high fatalities is reasoned to far outweigh the much smaller risk of adverse vaccine effects. Id. Physicians assume an overriding ethical imperative embodied in the Hippocratic Oath—first, do no harm. And even apart from the physicians’ vow, existence in a functional society requires consideration and deference to the minimization of harm. Unvaccinated workers who spread disease can produce tremendous harm. This is especially true when vulnerable patients are involved. Patients should rightly expect that their treating hospital will take every reasonable precaution to protect them from developing an ailment that they did not have upon admission. With regard to many contagious diseases, vaccination is the best way to honor this right. But what of a novel virus’s hastily-produced vaccine that even health care providers are wary of trusting and taking? What of vaccines that have yet to achieve full Federal Drug Administration approval?

A significant portion of U.S. health care providers have expressed reservation concerning the COVID-19 vaccines. When 12,939 nurses across the country were asked whether they would receive a COVID-19 vaccine if their employer did not require it, 36% of the nurses replied “no” and 31% replied “unsure.” Pulse on the Nation’s Nurses COVID-19 Survey Series: COVID-19 Vaccine, American Nurses Foundation, Jan. 18, 2021. Further, right here in Ohio, Governor DeWine lamented that by January 2021 60% of nursing home staff in the state had declined receiving a COVID-19 vaccine though given the opportunity. Tommy Beer, Large Numbers Of Health Care And Frontline Workers Are Refusing Covid-19 Vaccine, Forbes, Jan. 2, 2021. And similar stories have been cited across the nation from Chicago to Houston to Los Angeles, majorities of nurses, firefighters, and frontline workers, respectively are more often than not rejecting vaccination. Id. In spite of these reservations, out of concern for patient safety and as a prospective antidote to another year of employee quarantines, workplace closures, and remote work, employers may be inclined to implement a mandatory vaccination policy. Further, because hospital employees’ work requires in-person shift completion where the care team encounters many people, many vulnerable people, chancing a voluntary vaccination policy may be ineffectual.

Legal Probe

The U.S. Equal Employment Opportunity Commission (EEOC) has confirmed employers may lawfully require COVID-19 vaccinations as a condition of employment provided that the employer consider exemptions for religious and medical accommodations. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC, Dec. 16, 2020. Moreover, because the EEOC has designated COVID-19 as a “direct threat,” employers have increased access to employee health information to verify vaccination if not providing onsite. Id. at K.1. The EEOC clarified that the COVID-19 vaccine is not a medical exam. Id. However, when administering a vaccine, employers should be cautious with pre- screening questions in order to avoid Americans with Disability Act (ADA) violations. Questions must be business-related and employers may not automatically terminate an employee who refuses to answer questions. Id. Further, the EEOC stated that employers may inquire about proof of an employee’s vaccination but should not question why an employee is unvaccinated to avoid disability-related inquiries. Id. at K.3. The ADA allows employers to have a qualification standard that classifies an unvaccinated employee as a “direct threat.” Id. at K.5. However, if the policy screens out or tends to screen out disabled individuals, the employer must show that an unvaccinated employee would pose a direct threat based on four factors: 1) duration of risk, 2) nature and severity of potential harm, 3) likelihood that harm will occur, and 4) imminence of potential harm. Id. at K.5; 29 C.F.R. 1630.2(r). Employers must attempt to accommodate employees who cannot receive a vaccine and who are determined to be direct threats. Id. Consider the feasibility of creating a safe workplace for all absent the employee’s vaccination. Would additional personal protective equipment (PPE) or a transfer to an equivalent workspace adequately protect all workers? If not, then employers may exclude non-vaccinated employees from entering the workplace but still may not automatically terminate them Id. at K.5.

Employees may also assert that a sincerely-held religious belief prevents their vaccination. In this case, an employer must provide a reasonable accommodation unless it would pose an undue hardship, or more than a de minimis cost or burden on the employer Id. at K.6. Illuminating that “religion” may be defined broadly, an Ohio Court deemed veganism as a “plausible religious belief ” qualifying an employee for accommodation regarding a mandatory vaccination policy. Chenzira v. Cincinnati Children’s Hospital Medical Center, Case No. 1:11-cv-00917 (Dec. 27, 2012). Employers may question employees to better understand their beliefs so as to best assess and address concerns and provide accommodation if necessary. Though religion is wide-ranging, personal preference against vaccination is not protected.

Method

Employers who do opt to implement mandatory vaccination policies should diagnose the breadth and logistics of the policy by considering the following. Who in the workforce will be vaccinated Employers may utilize multiple policies based on legitimate business reasons, e.g. office worker versus production team. How will the vaccine be administered to employees? How will employees prove vaccination? Will you cover associated costs? Will you require a second vaccination if the initial dose wanes? How should employees request accommodations? Lastly, how will you address employee vaccination refusal due to pure preference? Consider accommodation to a lesser degree because the company vaccination policy must be consistent.

Also relevant in hospitals and across many industries is the role of independent contractors. In 2018, the American Medical Association found that 7% of physicians were independent contractors. Carol Kane, Updated Data on Physician Practice Arrangements: For the First Time, Fewer Physicians Are Owners Than Employees, AMA, 2018. And in Forbes’s survey, 14% of U.S. workers listed independent contractor as their primary job. Elaine Pofeldt, Survey: Nearly 30% Of Americans Are Self-Employed, Forbes, May 30, 2020. For employers, independent contractors demand fewer protections but also allow decreased control. Employers implementing mandatory vaccination policies for employees should include similar requirements in contracts entered into with independent contractors and amend existing contracts. Similar to employee variance, however, employers may find that certain independent contractors may safely engage with the workplace following accommodation procedures such as additional PPE if their contacts are sequestered or infrequent.

Diagnosis

While a mandatory vaccination policy may seem like a silver bullet at first blush, employee and public reservations and potential pushback as well as legal considerations under the ADA should guide employers’ plan of attack against the effects of COVID-19 on the workplace. Though vaccination may be a contentious topic, vaccination policies, whether mandatory or incentivized, should be built upon compromise, consideration, and community.

Allison Smith Newsome is an associate at Taft Stettinius & Hollister LLP in the Health & Life Sciences industry group. Allison additionally serves as the volunteer magistrate for the Rocky River Juvenile Community Diversion Program offered through the Cuyahoga County Juvenile Court. Allison serves on the Board of Directors for the CMBA and is a member of the Health Care Law Section, Women In Law Section, Ethics & Professionalism Committee, and Bench-Bar Committee. She has been a member of the CMBA since 2017. She can be reached at(216) 241-2838 or ansmith@taftlaw.com.

 

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