Know the rules regarding COVID-19 vaccine mandates for health care workers
In this issue, Jonathan D. Leffert, MD, talks with labor and employment law expert Kim Leffert, who is his sister, about what health care practices can require of their employees with relation to COVID-19 vaccine mandates.
Jonathan Leffert: Can you explain the legal aspects of COVID-19 vaccination mandates as they apply to the health care setting?
Kim Leffert: Vaccine mandates in employment, particularly in the health care setting and in schools, are not new. Courts have long upheld vaccine mandates, including the U.S. Supreme Court, which upheld a Massachusetts smallpox vaccine mandate in 1905. The Supreme Court recognized that there “are manifold restraints to which every person is necessarily subject for the common good.”
Companies, including health care settings, have a legal obligation to keep their workers safe and, thus, can generally require vaccines in the context of setting and enforcing terms and conditions of employment. However, some employers must provide reasonable accommodations to those with health or religious reasons for not being vaccinated.
In May 2021, the Equal Employment Opportunity Commission, the federal agency that enforces laws prohibiting discrimination in the workplace, published guidance to employers regarding mandating COVID-19 vaccinations. The guidance provides, among other things, that employers may require their employees to become vaccinated, as long as the employers comply with the “reasonable accommodation” provisions of the Americans with Disabilities Act (ADA) and allow for religious exceptions for sincerely held beliefs. With respect to reasonable accommodations, the EEOC guidance advises employers to consult the CDC’s recommendations, which include social distancing, masking, COVID-19 testing and teleworking. The EEOC guidance also reiterated that it is unlawful for an employer to disclose if an employee has requested a reasonable accommodation and to retaliate against an employee for requesting such an accommodation.
On July 29, President Biden announced that he will require federal workers, including the military and on-site contractors, to prove they have been vaccinated or wear masks and submit to frequent COVID-19 testing. President Biden also asked his team to take steps to apply similar standards to all federal contractors and to encourage private sector employers to follow the same approach. On Sept. 9, the president issued two new executive orders directed at the federal workforce and federal contractors and requiring COVID vaccinations for federal and contractor employees, as well as the implementation of other safety protocols for these groups. While not all federal contracts trigger the executive order vaccine obligations, government agencies are encouraged to implement the rule broadly.
Further, the executive order directed the Occupational Safety and Health Administration to develop a rule that employers with 100 or more employees will be required to ensure their employees are vaccinated or tested weekly. OSHA submitted the text of this emergency temporary standard to the White House on Oct. 12, but the rule has not yet been announced to the public.
There has been opposition to vaccine mandates, despite the legal support. In May, the first lawsuit was filed against a private employer for mandating COVID-19 vaccinations. More than 100 employees sued Houston Methodist Hospital challenging its mandatory vaccination policy. The employees alleged that requiring them to become vaccinated was a human rights violation because the COVID-19 vaccines are “experimental” drugs that had been approved by the FDA only for emergency use. In June, the district court dismissed the lawsuit, finding that it lacked any legal basis under Texas law, the employees’ arguments that the vaccines are not safe were misplaced and that public policy clearly supported widespread inoculation efforts.
Many lawsuits have followed, with vaccine mandates surviving legal challenges in most cases. For example, in late September, a court found that employees at Kentucky’s St. Elizabeth Medical Center, a private hospital, must comply with the hospital’s COVID-19 vaccine mandate while its legality is being debated, because the argument that a vaccine mandate violates the employees’ constitutional rights is unlikely to succeed.
On Oct. 13, a court held that the state of Maine can enforce its COVID-19 vaccine mandate for health care workers, which is scheduled to take effect Oct. 29. The court found that even though Maine’s vaccine mandate does not provide a religious exemption, the law is not unconstitutional or discriminatory. In Maine, the law since 2019 provides that vaccine mandates for health care workers are permitted, with the only available exemption for persons with a valid medical reason. The court held that health care workers who object to vaccines based on religious beliefs are free to quit. The use of masks or tests was insufficient to prevent outbreaks in the health care setting.
There is uncertainty, however, regarding whether state and local laws that prohibit vaccine mandates, such as the executive order announced by Texas Gov. Greg Abbott in October, will trump the federal rules that generally permit workplace vaccine requirements. Some employers have already announced that they will follow the federal obligations for government contractors, so litigation may ensue. This is a rapidly evolving area of the law, so stay tuned!
Jonathan Leffert: What has been your experience with employers as to the methods that are being used to encourage 100% employee participation in COVID-19 vaccination in the health care setting?
Kim Leffert: Communication with employees has proved effective in convincing employees to get vaccinated. Further, employers are using various carrot-and-stick methods to obtain high vaccination rates. Some of the incentives include providing those employees presenting proof of vaccination with nominal cash payments, gift cards and additional paid vacation days and, where permitted by local law, waiving the obligation to wear masks indoors. Other employers are encouraging employees to get vaccinated by requiring unvaccinated employees to get frequent testing at their own expense, paying supplemental amounts for health insurance coverage, and imposing unpaid leaves of absence and termination of employment.
In union settings, an employer may be obligated to bargain with the union regarding a vaccine mandate. Where the union supports and agrees to the vaccine mandate, it appears that more union members are likely to get the shot.
Jonathan Leffert: In addition to vaccination mandates, what other legal issues related to the health care setting should employers be aware of as a result of the COVID-19 pandemic?
Kim Leffert: Employees who are absent due to COVID-19-related issues, such as those who must quarantine due to close contact or stay home to care for a child quarantined from school, have raised legal issues for employers. Employers should be sure that they are familiar with the paid and unpaid time off provisions that are applicable to their employees. In addition to paid vacation, these obligations can include unpaid federal [Family and Medical Leave Act] leave, as well as state and local laws requiring employers to offer paid sick time and other paid and unpaid family and medical leaves.
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Jonathan D. Leffert, MD, is managing partner at North Texas Endocrine Center and past president of the American Association of Clinical Endocrinology. He is an Endocrine Today Editorial Board Member and the Putting It Into Practice column editor. He can be reached at email@example.com; Twitter: @JonathanLeffert.
Kim Leffert is of counsel in the Chicago office of Mayer Brown’s Litigation & Dispute Resolution practice. She has intensive experience in counseling employers in labor and employment matters. She can be reached at firstname.lastname@example.org; website: www.mayerbrown.com.