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Medical practices and other employers are permitted to choose to accommodate an employee with a medical or religious objection, even if not legally obligated to do so.
established by their employers, as well as those established by organizations which operate the facilities or offices where they work or practice. This would include, for example, physicians who have privileges at hospitals but are not employed by such hospitals, and other healthcare workers who visit medical offices or other healthcare facilities not operated by their employers. Physicians in independent practice who have traditional medical staff privileges at hospitals and other facilities operated by health systems or other physicians will need to review the medical staff bylaws as well as the policies adopted by the facility and, if applicable, the policies of their own employers, to determine the ability of the facility to suspend or terminate their privileges and any available rights of review.
Accordingly, even if an individual’s direct employer does not mandate COVID-19 vaccines, the individual may still be required to obtain a COVID-19 vaccination or receive an exemption pursuant to a policy established by a hospital or medical practice where they conduct services. Additionally, the individuals will need to abide by the policies and procedures established by that entity in order to obtain a medical or religious exemption. This means that although a physician or healthcare worker may have previously submitted an exemption request to their direct employer, they may also be required to submit another exemption request to the entity where they are performing services. Physicians and other healthcare workers should confirm the policies and protocols of their employer and/or the facilities where they provide services to provide proof of COVID-19 vaccination or to apply for or request an exemption or accommodation.
Examples of reasonable accommodations may include requiring the unvaccinated individual to wear a facemask at all times (except when eating or drinking), work at a social distance from co-workers or non-employees, work a modified shift, undergo periodic testing for COVID-19, be given the opportunity to work remotely if feasible, or to accept a reassignment if possible. If a reasonable accommodation is not feasible, and the employee refuses or otherwise continues to be unvaccinated, the medical practice would need to decide whether disciplinary action in accordance with its vaccination policy, such as unpaid suspension, reassignment or possibly termination, is appropriate. Because medical practices and other employers have a risk exposure to employment discrimination claims in these circumstances, documentation of the process followed by the medical practice will be critical to defending an employment discrimination claim, if asserted.
Other Considerations for Medical Practices, Physicians and Healthcare Workers
Healthcare workers, such as physicians, nurse practitioners and other professionals who work or practice within facilities operated by health systems or offices operated by private medical practices, will need to abide by the policies and procedures
*Patrick J. Haddad and Kathleen A. Westfall are members of Kerr, Russell and Weber, PLC. Their legal practices focus on health care and insurance. Kerr Russell is legal counsel to the Oakland County Medical Society. For more information about this article, Mr. Haddad or Mrs. Westfall may be contacted at (313) 961-0200, phaddad@kerr-russell.com or kwestfall@kerr- russell.com. This publication is furnished for informational purposes only, and receipt hereof does not establish an attorney-client relationship. It does not communicate legal advice by the Oakland County Medical Society, Mr. Haddad, Mrs. Westfall or Kerr Russell. © 2021 Kerr, Russell and Weber, PLC
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SEPTEMBER/OCTOBER 2021 | WWW.OCMS-MI.ORG