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COVID-19 vaccine policy: Is your medical practice ready?

MGMA Stat - December 17, 2020

HR Legal

Policies & Procedures

MGMA Staff Members

The Medical Group Management Association’s most recent MGMA Stat poll asked healthcare leaders, “Do you have a policy for staff COVID-19 vaccinations?”
  • The majority (47%) said “no.”
  • 32% said “in-progress.”
  • 21% responded “yes.”

The poll was conducted Dec. 15, 2020, with 900 applicable responses.

Read the CDC’s FAQ on COVID-19 vaccinations

Vaccines are on the way

The first of about 3 million doses of Pfizer’s vaccine left a Michigan factory Dec. 13, packed in dry ice to keep them in a deep freeze. Federal officials expect to distribute 40 million doses of one or more vaccines authorized by the FDA by the end of the year, which would cover 20 million people.
Healthcare personnel and residents of long-term care facilities are near the top of the list of priority recipients, though each state is handling allocation differently:
  • In Ohio, the lion’s share of the first 98,000 doses will go to long-term care facilities.
  • In Georgia, priority will go to organizations with higher volumes and capacity to vaccinate, which will favor hospital systems.
  • In Colorado, the initial 46,800 doses of the Pfizer vaccine are being prioritized during a “Phase 1A” for healthcare workers who interact with COVID-19 patients, nursing home residents and staff.

Deciding on policy

The swift authorization of the Pfizer vaccine and subsequent distribution of doses is catching some organizations unready to know precisely how to prioritize which workers should get immunized, especially since available doses are unlikely to cover all physicians, providers and staff.

Kaiser Health News reports that Intermountain Healthcare in Salt Lake City will prioritize workers “with the highest risk of contact with COVID-positive patients or their waste,” said Kristin Dascomb, MD, medical director of infection prevention and employee health. Managers at the group will determine which caregivers are first in line.

This can pose a challenge for managers who may not be trained or prepared to make such decisions. A poll conducted by Ipsos in early December of 1,005 respondents across the United States found that 49% of employees say their employers should require COVID-19 vaccines.

Should an employee policy require vaccinations?

Elaine Turner, shareholder/partner, Hall Estill, says requiring mandatory vaccinations as part of your employee policy comes with some challenges.

"The Equal Employment Opportunity Commission (EEOC) has not yet spoken to whether employers may mandate that all employees take a COVID-19 vaccine when one becomes available. However, during the H1N1 public health crisis, the EEOC determined that, during an influenza pandemic, employers could not mandate that all employees take a flu vaccine regardless of employee medical conditions and religious observances,” Turner said. “Under federal law, courts have found that employees were not exempt from mandatory vaccine policies when their medical condition did not rise to the level of a disability under the ADA or their anti-vaccine philosophy was not a sincerely held religious belief.”

Turner added that “courts determining federal law claims have also not exempted employees from mandatory vaccine policies when to do so would impose an undue hardship on employers such as healthcare providers whose patients would be placed at risk if exposed to employees with a contagious disease."

When it comes to determining the need for a mandatory COVID-19 vaccine policy, employers “must have a reasonable belief that a mandatory vaccine policy is required because an employee's ability to perform essential job functions will be impaired by COVID-19 or an employee will pose a direct threat due to COVID-19,” Turner said.

What are the exceptions under federal law?

Michael W. Twomey, JD, partner, Scott Patton PC, Houston, recently shared legal considerations for employers requiring vaccinations for employees:

The EEOC and the Occupational Safety and Health Administration (OSHA) addressed workforce vaccinations a decade ago during the H1N1 (swine flu) pandemic. The EEOC’s pandemic preparedness guidance, which has been updated in response to the coronavirus, does not forbid mandatory vaccination policies if exemptions are provided for disabilities under the Americans with Disabilities Act (ADA) and for sincerely held religious beliefs under Title VII of the Civil Rights Act (Title VII). OSHA also took the position that an employer may require vaccination. However, OSHA also stated that if an employee refuses vaccination based on a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine), the employee may have certain whistleblower protections under the Occupational Safety and Health Act. As a result, if a healthcare practice decides to mandate vaccinations, it must be prepared to handle employee objections.

As Twomey outlines, a healthcare employer must, at a minimum, consider the following objections in any mandatory vaccination program:
  • Objections based on sincerely held religious beliefs;
  • Objections based on a disability under the ADA; and
  • Objections based on a reasonable belief that a medical condition creates a real danger of serious illness or death because of the vaccination.
“Title VII prohibits religious discrimination in the workplace, but it also requires employers to reasonably accommodate an employee’s religious beliefs,” Twomey wrote. “Title VII’s definition of religion is broad and includes not only traditional, organized religions but also new and uncommon religious beliefs — even if few or no other people adhere to it.”

Best practices for preparing and implementing a vaccination program

Twomey offers these best practices for healthcare organizations in managing vaccination policies for physicians and employees:
  • The first consideration is whether the COVID-19 vaccine will be mandatory or merely encouraged and which positions or departments should be prioritized for vaccination. If vaccination is mandatory, ensure your human resources representatives are informed of and have processes in place to handle objections to the vaccine, whether based on religious beliefs or medical conditions, as discussed above.
  • Consider what accommodations may be available to employees with legitimate objections.
  • Develop a written form for requests for exemptions to formalize the process, but keep in mind employers must make individualized evaluations when reviewing objections.
  • To maintain employee morale, consider how you can lawfully separate bona fide objections from opportunists seeking to avoid work.
  • Ensure that you are treating all employees equally and are not retaliating against employees who do voice safety concerns.
  • Communicate early and often with your workforce about your vaccination program and how you intend to handle the coronavirus vaccine once it is available, including which positions or departments will be prioritized. A written policy will provide protocols and standards to guide your employees in any vaccination program and provide some certainty in very uncertain times.

MGMA Stat

Would you like to join our polling panel to voice your opinion on important practice management topics? MGMA Stat is a national poll that addresses practice management issues, the impact of new legislation and related topics. Participation is open to all healthcare leaders. Results of other polls and information on how to participate in MGMA Stat are available at: mgma.com/stat.

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