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Can you require medical office workers to get the COVID-19 vaccination?

Although it’s clearly a positive development for the world at large, the almost miraculous emergence of a vaccine for COVID-19 in less than a year poses legal challenges for employers in general and medical office staff and other healthcare providers in particular. The Question: Can employers require their workers to get the vaccine?

Bottom Line on Top: The answer is probably but not 100 percent certainly YES. And even if a mandatory vaccine policy is justifiable, it’s also subject to strict restrictions.

Legal justification for mandatory vaccination policies

Even though the COVID-19 situation is new and unprecedented, we can still discern the boundaries with regard to employers’ rights to demand that workers get vaccinated. Specifically, we know that OSHA, courts and arbitrators have historically upheld mandatory flu vaccination policies (as well as their slightly less restrictive cousin, the vaccination-or-mask policy requiring all employees to either get vaccinated or wear a mask during flu season) as a legitimate workplace health and safety measure.

The starting point is the broad general authority of employers to adopt policies to police the workplace and deal with health and safety hazards. For medical offices and other healthcare facilities, such policies are not only justifiable but also legally required to protect to protect workers’ and public health and safety. Moreover, because most employment is “at will,” workers can be fired for disobeying these policies.

OSHA’s policy on mandatory flu vaccination

OSHA has also given the green light to mandatory flu vaccination. No OSHA standard specifically addresses the subject. But the “general duty clause” of the OSHA statute (OSHA Act (Act), Section 5(a)(1)) requires employers to keep the workplace free from “recognized hazards.” Coronavirus infection is clearly a “recognized hazard,” especially in medical office settings.

In addition, OSHA guidelines on influenza preparedness for healthcare facility employers say it’s “advisable” for such facilities to “encourage and/or provide seasonal influenza vaccination for their staff, including volunteers, yearly, during October and November.” Admittedly, this language is pretty wishy-washy. But an OSHA Interpretation Letter from 2009 (during the influenza pandemic) not only reiterates the “encouragement” line but also adds the following: “Although OSHA does not specifically require employees to take [seasonal and H1N1] vaccines, an employer may do so.” Significantly, the Letter specifically addresses healthcare facility employers [OSHA Interpretation Letter, Nov. 9, 2009].

Do flu vaccination rules apply to COVID-19?

OSHA policy (and the pro-flu vaccination bent of courts and arbitrators) is based on three indisputable facts:

  • Fact 1: Influenza is contagious and spreads via human-to-human contact;
  • Fact 2: When a medical office worker gets the flu, it poses a hazard to not just co-workers but everybody in the workplace, including patients, vendors, visitors and guests; and
  • Fact 3: Flu vaccinations have been proven to be safe and effective in preventing the flu.

The first two facts clearly apply to COVID-19 as well. However, the same cannot necessarily be said about Fact 3. Explanation: Flu vaccines which have received normal non-emergency FDA clearance; current COVID-19 vaccinations have only received emergency use authorization (EUA) and thus lack long term data supporting their safety and effectiveness. And this casts doubt on whether the rules and guidelines for mandatory flu vaccination policies apply to COVID-19.

The 3 legal restrictions on mandatory vaccination policies

But even with this limitation in mind, the current rules for flu vaccination still offer the best source of guidance on COVID-19. Accordingly, most legal experts believe that mandatory workplace COVID-19 vaccination is justifiable as a necessary health and safety measure. But as with flu, mandatory COVID-19 vaccination is subject to the following four key restrictions:

  1. Policy can’t violate worker’s contract or CBA

Forcing workers to get vaccinated would be invalid if it violates the terms of workers’ employment contract, including the applicable collective bargaining agreement (CBA) of any workers represented by a union.

Example: A Washington hospital requires workers to get a flu vaccination to be considered “fit for duty.” Nurses sue and the court rules that unilaterally implementing the policy violates the hospital’s CBA duty to collectively bargain all employment terms and conditions [Virginia Mason Hospital v. Washington State Nurses].

  1. Policy must be as minimally invasive as possible

Even where mandatory vaccination is justifiable for a medical office or other setting, there must be a clear, written policy whose terms are limited to the minimum necessary to accomplish the health and safety purpose. If possible, the vaccination requirement should be based on job description and limited to workers for whom having COVID-19 would pose unusually significant hazards, as opposed to being staff-wide. Also consider the possibility of alternatives, such as a vaccination-or-mask policy, and leave room for religious and other exemptions, as we’ll explain below.

  1. Policy can’t discriminate on the basis of religion, disability or other EEO grounds

Mandatory vaccination might also violate employment discrimination laws. According to EEOC guidance, forcing a worker to get vaccinated might violate his/her “sincerely held religious belief, practice or observance;” the Americans with Disabilities Act would also kick in if workers have a disability that prevents them from taking the vaccine. In either case, exempting the worker from the policy might be one of the “reasonable accommodations” you’d have to make to accommodate the worker’s religion/disability. In either case, you’d have to engage the worker and determine what accommodations to offer, which could include:

  • Exempting the worker from the policy, which could be conditioned on his/her agreement to wear a mask;
  • Temporarily reassigning the worker to another position where lack of immunization would pose less of a hazard to others; and/or
  • Letting the worker work from home or take a leave of absence until the pandemic ends.

Discrimination & the “anti-vax” movement

The discrimination or human rights codes of some states protect not only religion but also creed, which is typically defined as a set of sincerely held religious beliefs or practices which need not be based on the edicts of an established church or particular denomination. That opens the door for a challenge by workers who subscribe to the so-called “anti-vax” philosophy that objects to vaccinations of any kind. The question of whether mandatory vaccination is a form of creed discrimination will depend on the actual case law and regulatory guidance of the particular state.

Policy can’t violate OSHA whistleblower discrimination rule

Section 11(c) of the Act makes it illegal to “discharge or in any manner discriminate against” a worker for filing a safety complaint or exercising other rights under the OSHA law. As noted by OSHA in the 2009 Interpretation Letter mentioned above, firing a worker for defying a mandatory vaccination policy could violate the whistleblower protections of Sec. 11(c) if the worker’s refusal is based on a “reasonable belief” that she has a medical condition, e.g., an allergy, that could result in serious injury or death if she gets the shot.

How to manage liability risks

Vaccination is clearly one of the best ways to prevent outbreak of COVID-19 at your medical office. But requiring workers to be vaccinated and disciplining them if they refuse is fraught with legal risks, especially given that the COVID-19 vaccination isn’t backed by long term scientific studies the way the flu vaccine is. A better option may be to encourage workers to get shots without ordering them to do so. Some of the ways to do that:

  • Provide the vaccination yourself at no cost to workers;
  • Vaccinate workers right on the worksite and at convenient times; and
  • Educate workers about the benefits of the vaccination and address any concerns they raise about its safety.

For a Mandatory Vaccine Form you can use, click here.

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