By A. Kevin Troutman, Partner, Co-Chair, Healthcare Practice Group, Fisher Phillips
With the flu season nearly upon us and the COVID-19 pandemic continuing, employers’ mandatory vaccination practices may soon become more important and more controversial than ever, especially in the healthcare industry. The reasons for this are many. First, the Centers for Disease Control (CDC) has stated that getting the flu vaccine this fall may be more important than ever, to reduce health risks for everyone and to conserve the country’s healthcare resources, especially for treating respiratory conditions like the flu and COVID-19. Second, one or more COVID-19 vaccines are expected to become available later this year or in early 2021, offering possible protection from this worldwide scourge. Third, as hospital employers well-know, mandatory vaccination policies can spark deeply personal responses at a time when political differences and social justice issues are already simmering.
It is well-established that Texas hospitals may require employees to get flu shots, particularly employees who are involved in patient care, as long as they also provide for exemptions under certain circumstances, as discussed below. Nevertheless, mandatory vaccination policies raise many questions and challenges. For example, when enforcing such policies, what specific risks or problem-prone issues do hospitals face? Will the same legal parameters apply if and when a reliable COVID-19 vaccine becomes available? And finally, is a mandatory vaccination policy the right option for every healthcare employer? As usual, the answers to these critical questions lie in the details. This article provides an outline of issues to consider, along with some guidance to help during these unprecedented times.
The Legal Landscape
As healthcare employers proceed under these unique circumstances, it is important to bear in mind the distinction between mandatory vaccinations and employee screenings such as temperature-taking, symptom checklists, and actual testing, which are currently in widespread use. Under applicable law, these screenings are considered medical inquiries or examinations that must be approached differently from vaccinations, as explained below.
The Americans with Disabilities Act (ADA) prohibits discrimination because of a disability, while also limiting employers’ rights to make related inquiries and to conduct medical examinations of employees. Any such actions must be job-related and consistent with business necessity.
This requires a reasonable belief that the employee’s ability to perform essential job duties will be impaired by a medical condition or that the medical condition will pose a significant risk of substantial harm to workplace health or safety that cannot be eliminated by reasonable accommodation. This belief must be based upon factual information, not subjective perceptions or irrational fears. Therefore, inoculation requirements should be based upon reliable, objective criteria that supports the business need for the policy.
The ADA also protects the privacy of employees’ medical information, which must be kept separate from general personnel files. The Health Insurance Portability and Accountability Act (HIPAA) also protects the confidentiality of individually identifiable health information held by covered entities (HIPAA, however, expressly excludes employment records from the definition of medical information that it protects). These and other laws provide a framework to guide employers in dealing with employees’ private medical data.
The Question Of Mandatory Flu Shots
With some important caveats, healthcare employers may require employees to get vaccinations to protect them from contracting and spreading influenza (the flu). The possible availability of a COVID-19 vaccine obviously ups the ante, especially in this fluid environment.
An employer’s right to require flu shots, however, is not unlimited. Specifically, the Equal Employment Opportunity Commission (EEOC) has repeatedly emphasized that, even during a pandemic, an employee may be entitled to an exemption from mandatory flu shot requirements based on medical reasons, such as an ADA-covered disability or pregnancy. Likewise, an employee may be exempted if taking the shot would violate sincerely held religious beliefs, practices or observances. The Texas Workforce Commission (TWC) provides almost identical guidance.
In either case, employers must engage in an interactive process with the employee to determine whether a reasonable accommodation would enable them to perform essential job functions without compromising workplace safety. This individualized assessment is an essential and often challenging aspect of legal compliance. Accommodations may take many forms, including but not limited to wearing a medical-grade mask or other personal protective equipment (PPE); a temporary reassignment; teleworking; or a leave of absence, to name a few. Employers are not required to provide an accommodation that would pose an undue hardship (and the evaluation of the “undue hardship” standard varies depending upon whether the requested accommodation is based upon a disability or sincerely held religious beliefs).
Some employees’ objections to mandatory inoculation may be grounded in the “anti-vax” movement, which could arguably form the basis for a claim. But courts have generally not been receptive to objections based purely upon secular arguments.
In every case, employers should ensure that their rationale for requiring flu shots is based upon objective facts, linked to employees’ job duties, and that its practices are administered consistently. Supporting policies must explain the hospital’s expectations and, critically, how an employee may request an exception or accommodation. Employers must also ensure that workers who request an accommodation suffer no negative repercussions.
May Employers Require A COVID-19 Vaccination When One Becomes Available?
This is the million-dollar question. Unless and until the EEOC publishes more specific guidance, its commentary concerning mandatory flu shots, including the need to consider employees’ reasonable accommodation requests, provides a framework to predict whether employers will be able to require employees to get a COVID-19 vaccination. Although the EEOC has advised employers to encourage flu shots rather than requiring them, it has not prohibited employers from requiring the shots, especially when the flu is severe.
Considering the scope and severity of the COVID-19 pandemic, the EEOC’s guidance regarding workplace screening for COVID-19, and the Commission’s position regarding mandatory flu shots, employers will probably have the right to require workers to be inoculated when a reliable COVID-19 vaccine is available. The requirement would be subject to the same caveats described above for mandatory flu shots. In other words, a COVID-19 vaccination requirement will likely be permitted, if the requirement is job-related, polices adequately inform employees, and they can seek an exception (or accommodation) on the basis of a medical condition or sincerely held religious belief. And of course, employers must still ensure the privacy of each employee’s medical information.
Employers’ Rights To Make Medical Inquiries Or Conduct Screenings Remain Far More Limited Than The Right to Require Vaccinations
In considering the above questions regarding mandatory vaccinations, employers must not conflate the concept of inoculation with the current widespread practices of daily employee screenings (i.e., medical examinations). Temperature checks, symptom screening, and COVID-19 testing are very unusual and unique to this current severe pandemic. For reference, an epidemic affects a large number of people, often rapidly. A pandemic is an “epidemic that travels,” occurring worldwide or over an extremely wide area. Even if very significant, however, seasonal or pandemic flu will not necessarily justify screening or testing in the workplace.
According to the EEOC, whether a pandemic influenza rises to the level of a “direct threat,” as explained above, depends upon the severity of the illness. The Commission determined, for example, that the COVID-19 pandemic met the direct threat standard, based on the significant risk of substantial harm that someone with the virus (or symptoms) would present in the workplace. This guidance established the rationale and need for employee medical inquiries or examinations, which may include temperature-taking, symptom screening, or actual testing.
Should An Employer Require Mandatory Vaccinations?
Considering the current CDC guidance regarding the importance of flu shots, which should be administered beginning in September or October, healthcare employers should update their inoculation policies now. Historically, when employers require flu shots, the proportion of workers who get them tends to increase from less than half to well over 80%. Where employers not to require vaccinations, there choice has primarily been based on employee relations issues.
No one knows when a reliable COVID-19 vaccine may be available, but healthcare employers should be prepared to respond when that happens. Keep in mind while that mandatory vaccinations may not be appropriate for every setting, encouraging vaccinations will help bolster participation and protect your workplace, while also helping reduce demands on the state’s healthcare system. Recognize that although it may not be feasible to offer flu shots on-site this year, employers may still be able to facilitate access to inoculations.
For any vaccine requirements that are mandatory, employers must ensure that their policies are clear and that they explain how to seek exceptions or accommodations. Finally, employers should continue to ensure that their policies and practices encourage sick workers to stay home without fear of reprisal, especially if they have a fever. Employees who are sick should remain home until they meet applicable return to work standards.
Conclusion
Hospitals must obviously continue to monitor the rapidly developing COVID-19 situation and be prepared to adapt as circumstances change. In the meantime, being ready for the coming flu season and a possible COVID-19 vaccine can help employers maintain a healthy workplace and minimize the risk of legal challenges to their policies.