Currently, many employers are wrestling with the question of whether to require their employees to receive the COVID-19 vaccine. Private hospitals and other healthcare entities were among the first private employers to begin mandating the vaccine. Now, many healthcare providers may be required by federal law to have their employees vaccinated. This article briefly explores the legal issues, developments and trends surrounding vaccines in the healthcare space. The status of vaccine mandates is complex and fluid, and state and federal law will likely continue to develop in the coming months.
Can a private healthcare employer ask employees about their vaccination status?
Yes. There is a misconception that asking employees about their vaccination status is a violation of the Health Insurance Portability and Accountability Act (HIPAA) or other law. HIPAA provides no such protection. Indeed, HIPAA does not even apply to the actions of employers regarding workplace safety issues. Employers, especially healthcare employers, have legitimate business reasons to ask employees about their vaccination status.
Can a private healthcare employer mandate the vaccine?
Generally, yes. Absent a state law prohibiting private employers from implementing a vaccine mandate,1 it is legal for private employers-including healthcare employers-to require their employees be vaccinated so long as the employer's vaccination policy complies with federal antidiscrimination laws.
In March 2021, as a test case of sorts, Houston Methodist Hospital was one of the first major health systems to mandate the COVID-19 vaccine. The hospital was sued by more than 100 employees over its new policy, which required employees to be vaccinated by a certain date or be terminated. A federal court dismissed the lawsuit, finding that the mandate did not violate Texas state law or federal law. The Court reasoned that the mandate "is not coercion," explaining that the hospital ".is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. [The employee] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else." Several other lawsuits brought by employees of healthcare systems are pending, but they, too, are unlikely to be successful.
Notably, on Oct. 11, 2021, Governor Abbot of Texas issued an executive order prohibiting private businesses, including healthcare entities, from enforcing a COVID-19 vaccine mandate on employees in Texas and called on state lawmakers to pass a similar ban into law. It is unclear how the executive order will be enforced and to what extent it will impact employers who already implemented mandates. Additionally, there are open questions regarding whether the executive order conflicts with federal law. The order is likely to be challenged in court. The legality of vaccine mandates in Texas is therefore uncertain and in flux.
Do vaccine mandates violate federal antidiscrimination law?
Although private employer vaccine mandates are generally legal, the vaccination policy must be structured in a way that does not violate federal antidiscrimination law or similar state law. For this reason, healthcare employers who mandate the vaccine should ensure their vaccination policies include a process for responding to requests for medical and religious accommodations.
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance on workplace COVID-19 vaccination policies. The EEOC clarified that federal law does not prevent an employer from mandating the vaccine ".so long as employers comply with the reasonable accommodation provisions." under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. The guidance also notes that employers may request proof of vaccination status, and employers may offer incentives to encourage employees to get the vaccine, so long as such incentives are not "coercive."
The two primary vaccine exceptions healthcare providers should be prepared to address, and for which accommodations should be provided if possible, are medical exemptions and religious exemptions.
Medical and Religious Exemptions
If an employee declines the vaccine for medical reasons, the healthcare employer must follow the process outlined by the Americans with Disabilities Act (ADA) by determining whether the employee has a qualifying disability under the ADA and if a reasonable accommodation can be offered. Medical exemption requests should be examined on an individualized basis considering the particular facts and circumstances. As part of that process, the employer can ask for additional information (including from the employee's doctor) about the employee's medical reason for declining the vaccine. However, such requests should be narrowly tailored to focus on the condition alleged to be the reason for declining the vaccine. Information obtained from the employee must be kept confidential.
Additionally, under Title VII of the Civil Rights Act of 1964, employees have the right to be free from discrimination on the basis of religion. If the employee requests an exemption based upon her religious beliefs, the employer must provide a reasonable accommodation, unless it would pose an undue hardship. If an employee asserts religious belief, the employer should ordinarily assume that the request for accommodation is based on a sincerely held religious belief. However, if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer can request additional information.
If the employee demonstrates a religious belief or qualifying medical reason for not receiving the vaccine, the employer must then determine whether an accommodation is reasonable in terms of cost and risk. Whether an accommodation can be offered depends on various factors, such as the nature of the employee's job responsibilities, the effects on the employer's operations and whether a safety protocol other than vaccination is adequate. Examples of a reasonable accommodation may be wearing a face mask and/or socially distancing; regular testing; teleworking; or modifying the employee's work hours or job responsibilities.
There may be circumstances-particularly in the context of healthcare-where granting an exemption for medical or religious reasons would pose a direct threat to others or result in an undue hardship to the employer's operations. Undue hardship is defined as more than a de minimis cost or burden on the employer. If the employer determines there is a direct threat or undue hardship, the healthcare employer is not required to provide an exemption or accommodation. The religious exemption issue is currently being challenged in court. The state of New York issued an order mandating that all healthcare workers at hospitals and nursing homes be vaccinated. A group of healthcare workers is challenging the law because the mandate did not provide for a religious exemption. A federal judge temporarily blocked the enforcement of the mandate pending resolution of the lawsuit. Subsequently, a federal appeals court ruled that New York must temporarily allow exemptions for healthcare workers with religious objections while it considers whether the mandate as a whole is legal. A ruling on the merits of the mandate is pending, placing New York healthcare employers in limbo as to whether they can or should exempt employees who have a religious objection.
Does the law require healthcare employers to mandate the vaccine?
Recently, President Biden announced a federal strategy initiative to combat the pandemic. Among other things, the initiative requires vaccinations for all staff at Medicare and Medicaid-certified providers and suppliers, including but not limited to hospitals, nursing homes, hospices, dialysis facilities, ambulatory surgical settings, home infusion therapy suppliers, rural health clinics, and home health agencies. The new federal mandate is expected to apply to approximately 50,000 providers and cover a majority of healthcare workers and staff across the country.
The Centers for Medicare & Medicaid Services (CMS) was tasked with taking action to implement the policy initiative. On Nov. 5, 2021, CMS issued its Interim Final Rule setting forth the details of this new mandate.
The Interim Final Rule requires Medicare and Medicaid-certified providers and suppliers to develop and implement policies and procedures requiring all staff be fully vaccinated. There are two phases. First, all staff must have received at least the first COVID-19 vaccine dose or have requested and/or been granted a lawful exemption by December 5, 2021. Employers must also have developed and implemented appropriate policies and procedures within this 30-day time period. Second, all staff must be fully vaccinated by Jan. 4, 2022 except those who are granted exemptions. The Rule requires employers to track and document the vaccination status of each staff member. Vaccine exemption requests and outcomes must also be documented. Employee medical records, which includes vaccine documentation, must be kept confidential and stored separately from employee personnel files. The Rule requires vaccination for all facility staff, regardless of clinical responsibility or patient contact, who provide any services for the facility, including facility employees, licensed practitioners, students, trainees, volunteers, and any individuals who provides services for the facility under contract or other arrangements.
Healthcare providers and employers should become educated on the specific requirements under the new Interim Final Rule. They should also pay attention to additional guidelines that are expected to be published soon regarding how CMS will enforce the Interim Rule as well as penalties for noncompliance.
Also part of President Biden's strategy initiative is a new requirement that all employers with 100 or more employees require COVID-19 vaccination or a weekly negative test result. On Nov. 5, 2021, OSHA issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) setting forth the details of this new requirement. The regulation may apply to certain healthcare employers who are not otherwise regulated by the CMS Interim Final Rule. Please visit this link for more information regarding OSHA's ETS.
Legal issues and policy considerations surrounding private employer vaccine mandates are complicated and continue to change. This is particularly true for healthcare employers, who may now, or soon, be required by state or federal law to mandate that their employees be vaccinated. Additionally, when a healthcare provider implements a vaccine mandate policy-whether by choice or because the law requires it-the policy needs to be written and implemented in a manner that does not violate antidiscrimination laws and otherwise complies with state and federal law. If you are a healthcare provider considering whether and how to mandate the COVID-19 vaccine, it is prudent to contact a healthcare attorney.
1. Montana passed a law prohibiting private employers from requiring COVID-19 vaccinations for their employees. However, the law includes an exemption for certain healthcare facilities. As discussed above, Governor Greg Abbot of Texas issued an executive order prohibiting any entity, including private businesses, from enforcing a COVID-19 vaccine mandate on employees in Texas and called on state lawmakers to pass a similar ban into law. The executive order does not include any exemptions for healthcare entities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.