Legal Update: Passing Up COVID-19 Shots

Many of you have learned, implemented, tweaked and documented new cleaning practices and infection control protocols — measures that seemingly changed from week to week — to keep your patients and staff safe from COVID-19. This year has brought issues surrounding vaccinations that can be moving targets as well. The first order of business is to know your state’s requirement and whether it applies to surgical facilities and members of your staff.

• Local laws. When this issue went to print, California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Washington, Washington D.C. and Puerto Rico issued COVID-19 vaccine mandates of varying degrees for healthcare workers — and more states will likely issue similar edicts in the months to come. Some laws apply to all healthcare workers, while others are limited to nursing care facilities, state-run hospitals or professionals who provide direct patient care. Stay current on legislation in your state to determine if your staff must be vaccinated.

• Medical reasons. Permitted medical exemptions from state vaccine requirements include being allergic to an ingredient in the vaccine; having had the neurological disorder Guillain-Barre’ Syndrome; or underlying medical conditions that would make the vaccine dangerous such as weakened immune systems or autoimmune conditions.

The medical exemption process in California is straightforward. Employees submit paperwork from their doctor that medically certifies the reason they can’t get the vaccine. These employees are permitted to work, but must wear masks and undergo testing for COVID-19 twice a week.

Lately, I have been dealing with cases involving employees who not only have a medical exemption, but a doctor’s note saying they’re unable to wear a mask because it causes anxiety, depression or another medical ailment. In these cases, we can’t have an unvaccinated employee working with no safeguards in place for the patients in their care (or themselves), so we’ve offered them the option of wearing face shields or noninvasive ventilation masks.

As a last resort, we’ve offered to transfer the employee to an area of the facility in which they wouldn’t be near patients and could perform nonclinical tasks such as scheduling or billing. These positions pay significantly less than their normal jobs do, and you’re not obligated to pay their former wage. The prospect of taking that pay cut has resulted in most employees we’ve dealt with recently to agree to get vaccinated. You could also offer your administrative employees the option of working remotely.

• Religious beliefs. Require employees to provide paperwork from their place of worship that explains why the vaccine is against their religious beliefs. The best practice is to simply accept this, because if you second-guess the legitimacy of one exemption and not another, you will set yourself up for a discrimination lawsuit. Employees who are exempt from getting vaccinated for religious reasons should follow the same protocols that apply to those with medical exemptions: mandated mask wearing and COVID-19 testing twice a week.

Fair warning: Be on the lookout for fake vaccination and exception cards. A Chicago pharmacist was recently arrested for selling 125 CDC vaccination cards to 11 buyers for $10 apiece on eBay. In California, churches are running ads offering exemption cards, even if people are not church members. This is why you should be suspicious of multiple identical exception cards from the same place of worship and insist on a signed letter from a minister, priest or rabbi about the reason for the religious exemption. 

There is some concern that vaccine mandates will make the existing nursing shortage worse. The deadline in California for healthcare workers to get vaccinated is Sept. 30. Some workers who have refused vaccination have been terminated already. The mandate, however, is silent on what will happen to workers without medical or religious exemptions who aren’t vaccinated by then, which has resulted in employers considering offering unpaid leave before they terminate an employee as a last resort.

If you anticipate a problem, start scouring temporary agencies now, and see if your state, like California, allows out-of-state nurses to practice on a short-term basis because of a staffing shortage caused by nurses who are terminated for refusing to get vaccinated. Perhaps California Gov. Gavin Newsom will soften the mandate and allow non-exempt, unvaccinated healthcare workers to stay on the job if they’re masked and get tested twice a week — the same allowances made for frontline workers with religious or medical exemptions.

I’ve been on the front line of discussing potential accommodations for employees who fit within medical or religious exemptions. When a compromise couldn’t be reached, some of these employees have been terminated, which could also happen to those who won’t get vaccinated because of personal objections that don’t fit either of the legal exemptions.

In no instance do personal beliefs about COVID-19 vaccines allow a healthcare worker to refuse vaccination without legitimate medical or religious exemptions if they work in states that mandate getting vaccinated. The issue remains divisive at healthcare facilities across the country. Human resources departments and facility leaders are having difficult conversations with employees with whom they’ve always had the same goal — to provide outstanding patient care every day — when they must tell their colleagues with objections to the vaccine that their jobs are in jeopardy if they don’t get it. OSM