By Matthew Konya, Esq., EMT-B
Two COVID-19 vaccines, Moderna and Pfizer-BioNTech, have been granted FDA Emergency Use Authorization. Healthcare workers across the country are receiving these vaccinations.
Healthcare employers have to make a choice. Do they require their employees to receive a COVID-19 vaccine, or do they leave that choice up to individual employees? This choice is even more critical because healthcare workers in many states are among the first to be offered COVID-19 vaccines. The CDC proposes that healthcare workers, include EMS, be provided the COVID-19 vaccine in phase 1a.
Employers can, in most cases, legally require their employees to be vaccinated. Many states also require that healthcare workers receive an annual flu vaccine. While healthcare employers can mandate healthcare employees get a COVID-19 vaccine, there are some exemptions that must be considered:
- Religious beliefs
- Allergies
- Medical reasons
Healthcare employers cannot force employees with a sincerely held religious belief, a legitimate allergy, or a legitimate medical reason that prevents them from receiving a vaccine to receive the COVID-19 vaccine. Subsequently, employers cannot punish employees for refusing the vaccine on the same grounds. Finally, state and local protections might also apply to employees who refuse a COVID-19 vaccine.
Vaccine exemption: Sincerely held religious beliefs
Employees are protected from employer interference with their sincerely held religious beliefs by Title VII of the Civil Rights Act of 1964. An excellent example of this protection is that employers must allow employees to participate in prayer during regular business hours as long as the practice does not create an undue hardship for the employer. Regarding vaccines, some religious sects do not believe in the use of vaccinations and other drugs.
If an employee refuses to vaccinate based on a sincerely held religious belief, their employer can request that the employee always wear a mask while at work. Employers must ensure that they do not discriminate against any employee based on their sincerely held religious beliefs. For example, an employer cannot punish an employee for refusing to vaccinate or force the employee to get the COVID-19 vaccine simply because the employer disagrees with the employee’s sincerely held religious beliefs or does not share the same beliefs.
However, this exemption only applies to employees refusing a vaccine based on a sincerely held religious belief. Employees who identifies themselves as “anti-vaxxers” may refuse to receive the COVID-19 vaccine because they do not believe in vaccines. Simply disliking vaccines is not a sincerely held religious belief.
Vaccine exemption: Legitimate allergies and medical conditions
The Americans with Disability Act protects employees with a legitimate allergy (e.g., gelatin or egg protein) or a medical condition that might prevent them from receiving a vaccine. The ADA defines a disability as, “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”
Arguably, having a legitimate allergy or medical condition that would preclude an employee from safely receiving a vaccine would be a disability under the ADA. Like employees who request religious exemptions for mandatory vaccination policies, the employer can ask that the employee with a legitimate allergy or medical condition that precludes them from receiving a COVID-19 vaccine perform some other infection control technique.
One of the most straightforward reasonable accommodations is to require the employee to wear a mask (either cloth, surgical or N95) at all times while at work. The key is to engage the employee in an interactive process to determine if a reasonable accommodation can be made that does not pose an undue hardship on the employer and does not pose a direct threat to coworkers and patients (undue hardship is a significant difficulty or expense incurred by an employer related to implementing reasonable accommodation – a direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation).
Employees who have a disability and refuse to get a vaccine should also sign a formal waiver that their employer retains.
Finally, the Occupational Safety and Health Administration has also issued guidance regarding vaccination policies in the past. While OSHA has not directly discussed COVID-19 vaccines, it has issued guidance on mandatory influenza vaccine policies. OSHA has stated that organizations can require staff members to receive the influenza vaccine. However, exemptions for sincerely held religious beliefs and ADA qualified disabilities apply. OSHA has also made it clear that staff members should be adequately informed about the benefits of receiving a vaccine. Staff members who refuse the COVID-19 vaccine due to a reasonable belief that they have a medical condition creating a real danger of severe illness or death may be protected as whistleblowers under OSHA.
Vaccine mandates: 4 Next steps for public safety organizations
Public safety employers need to decide if they will require employees to get the COVID-19 vaccine. Many employers are opting not to mandate the vaccine, and instead, encouraging employees to have it. Some employers may opt to mandate the vaccine later, after encouraging voluntary vaccination, especially after the FDA issues full approval for the vaccine and not just the emergency use authorization currently in place.
Regardless whether you require employees to receive the COVID-19 vaccine or not, there are some steps all employers should take:
- Survey your employees so you can get a gauge of how many employees are considering getting the COVID-19 vaccine.
- Provide employees with educational information regarding the COVID-19 vaccine. Such information will help employees make their own informed decisions regarding the COVID-19 vaccine.
- If you choose to require employees to receive the COVID-19 vaccine, make sure that your policies regarding vaccines and vaccine declinations are up to date.
- It is also vital to ensure that your organization can handle employee requests for exemptions to any mandatory vaccination policy.
COVID-19 vaccines will undoubtedly provoke debate within society and the workplace. The speed with which scientists developed COVID-19 vaccines will be considered a feat of science and technology by some and a troublesome indication by others. Employers must be ready when these issues arise, emphasizing the importance of getting vaccinated for all staff members with direct patient contact.
About the author
Matthew Konya, Esq., EMT-B, is an associate attorney with Page, Wolfberg & Wirth, LLC, and an active EMS practitioner. He can be reached at mkonya@pwwemslaw.com.