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(“EEOC”), the federal agency tasked with enforcing federal employment discrimination laws, has issued guidance concluding that most employers will be able to mandate COVID-19 vaccinations for their employees. Although the EEOC guidance specifically applies to employees performing in-person work, some employers have adopted vaccination policies which apply to remote workers as well.
Can Hospitals and Medical Practices Require COVID-19 Vaccinations Authorized for Emergency Use Authorization?
Currently, yes. The U.S. Department of Justice’s (“DOJ”) Office of Legal Counsel has released a memorandum concluding that public and private entities are not prohibited from imposing COVID-19 vaccination requirements, even when the only vaccines available are those authorized by the FDA under Emergency Use Authorizations (“EUA”). In addition, the EEOC and several recent court decisions have reached similar conclusions.
What Should Medical Practices Do When Adopting a Mandatory COVID-19 Vaccine Policy?
Medical practices which choose to mandate COVID-19 vaccinations should establish a written policy that outlines (i) to whom the policy applies, (ii) the applicable deadline for becoming fully vaccinated, (iii) the process for furnishing proof of vaccination, (iv) the availability and process for requesting an exemption (discussed below), (v) the possible disciplinary action or other consequences for failure to comply with the policy, and (vi) other processes and protocols that may be directly applicable to the practice. The medical practice should also consider whether to mandate booster vaccinations, if and when available, as part of its policy.
Are Medical Practices Required to Include Exemptions as part of Mandatory COVID-19 Vaccination Policies?
Medical practices and other employers which choose to mandate COVID-19 vaccination policies must be mindful of employees with medical conditions/disabilities or religious objections (including non-theistic objections) which preclude
the employees from obtaining a COVID-19 vaccine. Some common examples of objections to vaccinations generally (not necessarily the COVID-19 vaccine) may include, but are not limited to:
• allergies to ingredients contained in the vaccine;
• religious beliefs prohibiting individuals from obtaining vaccines which either contain or were tested upon cell lines from aborted fetal tissues (not applicable to the Pfizer or Moderna COVID-19 vaccine); or
• ethical and/or moral beliefs prohibiting individuals from consuming or receiving any form of animal product (not applicable to the Pfizer, Moderna or Johnson & Johnson COVID-19 vaccine).
Medical practices implementing a mandatory COVID-19 vaccination policy should ensure that the policy includes a process for employees who object to the vaccination to apply for an exemption on medical or religious grounds. Medical practices should treat a request for an exemption as a request for reasonable accommodation and consider whether such reasonable accommodation may be extended. When evaluating a request for a medical exemption, medical practices may request medical documentation from the requesting employee if the medical condition is not obvious or already known. Similarly, when evaluating a request for a religious exemption, the medical practice may ask for additional supporting information if the medical practice has an objective basis for questioning the nature or sincerity of a particular belief of the requesting employee.
Note that under the EEOC’s guidance, an employer’s legal obligation to accommodate an employee under its COVID-19 vaccination policy due to a medical condition is different from its legal obligation to accommodate an employee due to religious objections, as follows:
• If an employee seeks an exemption to the COVID-19 vaccine due to a medical reason, the medical practice will need to accommodate the employee unless a significant difficulty or expense would be imposed on the practice.
• If an employee seeks an exemption to the COVID-19 vaccine policy due to a religious exemption, an employer is not legally obligated to accommodate the employee if more than a minimal cost or burden would be imposed on the employer.
SEPTEMBER/OCTOBER 2021 | WWW.OCMS-MI.ORG
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