By A. Kevin Troutman, Partner, Fisher Phillips
As more Texans continue to receive COVID-19 vaccines and clinical data seems to be trending favorably, both local and national media has devoted considerable attention to Houston Methodist’s mandatory vaccination policy and the amplified opposition of a nurse who opposes that policy. This story highlights issues that every healthcare employer should think about if they are considering adopting a similar policy.
To its credit, Methodist announced its well-reasoned, lawful policy decision – that subject to exceptions for certain medical or religious reasons, it would require all employees to get vaccinated. It gave employees plenty of notice, provided incentives, and ensured access to vaccines and information, including material about their development and safety and how employees could request an exemption for those qualifying reasons.
Additionally, Methodist has consistently emphasized its commitment to safety, as well as the solemn responsibilities that accompany accepting a job in healthcare. Healthcare workers, probably more than any other group, understand first-hand the suffering that this ongoing pandemic has wreaked on patients, their families, and caregivers. Those who have stood alongside the dying best appreciate the anguish of watching lives inexorably slip away. During the past 15 months, COVID-19 repeatedly inflicted an onslaught of those grueling experiences.
Vaccine Availability in December Soon Provided Measurable Relief
After the Food and Drug Administration (FDA) approved vaccines for use in this country in December, through its Emergency Use Authorization (EUA) procedures, many healthcare workers quickly lined up to receive it. By the spring, Methodist (and undoubtedly other healthcare employers) recognized that as their vaccination rates increased, its employees’ illness and absentee rates decreased. By the time Methodist’s policy hit the news, over 80% of employees had already been vaccinated.
Still, there were some holdouts who refused vaccination, without presenting a qualifying medical or religious basis for an exemption. This was true even among some who had witnessed the ravages of the virus first-hand. The holdouts, whose numbers are unclear, attracted considerable media attention last month, even as the percentage of vaccinated Methodist employees kept growing. A nurse who initially spoke anonymously became the face and voice of the opposition in the media, initiating an online petition against the policy, apparently pursuing litigation and seeking financial support through a crowd-funding site. She characterized the vaccines as potentially unsafe and not fully tested, claiming that she could be “blacklisted” because of her opposition, all while she continued to be employed at Methodist. The nurse contends that many employees share her point of view. In a television interview, she argued that she and other holdouts just want “more time,” stating that in two years they would gladly take the vaccine.
Even though testing has established that the vaccines are highly effective and safe, it remains unclear what level of herd immunity will be required to stop the virus from spreading, which is everyone’s shared goal. That uncertainty is because the disease is brand-new, but Methodist and other healthcare leaders, some of whom have now also moved toward requiring vaccines, seem to agree that higher vaccination levels move the country closer to herd immunity and that ultimate goal.
Employers Can Legally Enforce Vaccine Requirements
Even assuming that Methodist had the luxury of simply waiting two more years before implementing this policy, as holdouts suggested, it has the legal right to enforce its policy now, subject to the exemptions referenced above. Employees who have no legal basis to obtain an exemption, but do not want to be vaccinated can certainly refuse. They will probably have to find a job somewhere else, however. Vaccines are not new to Methodist or other healthcare employers. Flu shots have been mandatory at many healthcare workplaces for years, subject to the same above-referenced exemptions.
The COVID-19 vaccination is clearly controversial, for many reasons, but the healthcare community has made great strides in addressing many fears and misconceptions that initially fed the so-called “vaccine hesitancy.” For example, they have repeatedly addressed how the EUA process did not skip vital testing or compromise the safety, as is still widely asserted. They also encourage individuals to discuss vaccination questions with their trusted healthcare advisor.
Vaccine Hesitancy Has Not Disappeared
Still, there is no denying that approximately 20% of the population harbors some significant level of concern or even opposition to taking the COVID-19 vaccination. Thus, even in the healthcare industry, it appears that far less than half of all employers are currently requiring vaccinations. Most are still encouraging it. The decision of whether or not to mandate remains very employer-specific, even job-specific. Employers who are considering moving toward a vaccine mandate should therefore consider several issues before making their decision.
As illustrated by Methodist’s experience, opposition and distractions can take many forms, even when the employer has thoroughly prepared and communicated its plans and expectations, keeping in mind that handling employee requests for accommodation is a detailed and time-consuming process.
7 Issues To Consider Before Proceeding with a Vaccine Mandate
Although the number of individuals who oppose vaccinations may be shrinking, there may still remain a determined faction at your workplace that remains unconvinced. Regardless of whether the law is on your side, it is important to consider issues relating to this shrinking percentage before acting. Accordingly, while you can require employees to receive the vaccination in order to remain in the workplace, you should not adopt such a policy before considering seven important issues:
- Identify known concerns among your workforce and provide information to help employees understand how vaccinations can reliably promote health and safety for themselves, co-workers, and others.
- Take into account the unique environment at your business, figure out the best way to communicate your policy to employees, including how much notice to provide before implementing the requirement.
- Consider related logistics, including compensation issues that may be implicated and whether to provide incentives to workers for getting inoculated.
- Develop a robust and clear reasonable accommodation policy to address religious and disability issues, taking special care to communicate and administer the accommodation process in a thoughtful way, with emphasis on individualized, confidential consideration of each request.
- Spend time considering how your employees, customers, and other constituents are likely to respond to the policy, including how you will handle responses such as those described above.
- Consider how and when workplace protocols may change as more employees become fully vaccinated, keeping in mind that the Occupational Safety and Health Administration (OSHA) may not substantially relax its recommendations for individuals who are fully vaccinated.
- Develop a designated team for coordinating this entire process.
Employers’ evaluation of these issues could of course change as the next phases of the pandemic unfold. As usual, a key for employers will be to plan and communicate thoughtfully while remaining nimble as unexpected twists and turns will inevitably arise.