How to talk to employees about COVID-19 vaccine requirements: HIPAA, religious exemptions and more

As COVID-19 vaccination and/or testing requirements for healthcare workers expand, medical practice leaders face the tall tasks of handling communications, education and compliance.

The threat of losing workers who oppose getting vaccinated complicates an already difficult labor situation that finds staffing is the biggest pandemic challenge for practices heading into 2022.

An Oct. 5, 2021, MGMA Stat poll revealed that only 38% of medical practices have had staff quit or terminated due to COVID-19 vaccine requirements, whereas 62% report no such issues. The poll had 1,018 applicable responses.

Big headlines have emerged about major health systems terminating hundreds or thousands of workers at once [Fierce Healthcare has a running list of vaccine-related resignations/terminations], but the heart of the matter is very personal for workers, and getting messaging to them that resonates is an ongoing challenge for human resource leaders. As two respondents told MGMA:

• “I am finding that it is a deeply personal issue with each person I talk to. It is very important to listen to people who don't want to get the vaccine. I am pro-vaccination all the way and have been touched to learn each person’s reason for not wanting the vaccination.”
• “The biggest issue was the inability to not include personal feelings in a professional decision. … To convince people, we had to discuss the personal climate of the employees’ lives, and ultimately the decision was a personal one, not a professional one.”

From more than 100 medical practice leaders who shared their experiences with losing employees (by resignation or termination), major themes around employees’ refusal to be vaccinated against COVID-19 emerged:

• Insistence on freedom of choice
• A sense that their personal rights are being infringed, including HIPAA protections
• Concerns about the long-term effects of COVID-19 vaccines
• A general distrust of the federal government and handling of the pandemic to date
• Claims of religious beliefs that would prevent them from getting vaccinated
• Embrace of outright misinformation about the safety and efficacy of COVID-19 vaccines.

One respondent said that employee demographics also play a part in vaccine hesitance or refusal.

“If they are reluctant due to unknowns about long-term effects that might be discovered later, it is difficult to argue … since we do not have long-term data; if they are in a low-risk group and willing to take precautions to avoid high-risk situations and wear PPE in the office, there is little that can be done to convince them to take a COVID vaccine.”

HIPAA and COVID-19 vaccination in the workplace

Conversations about healthcare workers’ vaccine status can quickly turn into a difficult discussion over what rights employees have as patients and their protected health information (PHI).

On Sept. 30, the Department of Health & Human Services (HHS) Office for Civil Rights (OCR) issued guidance on how the HIPAA Privacy Rule applies to COVID-19 vaccination status disclosures and requests for information.

Key takeaways

• The Privacy Rule does not prohibit employers from requiring employees to disclose COVID-19 vaccine status to the employer, as the Privacy Rule does not apply to employment records (including records held by covered entities and business associates). According to OCR guidance, “the Privacy Rule generally does not regulate what information can be requested from employees as part of the terms and conditions of employment that a covered entity or business associate may impose on its workforce.”
• The Privacy Rule does not prohibit businesses or individuals (including covered entities) from asking about vaccination status. Instead, it regulates how and when covered entities or business associates may use or disclose protected health information (PHI).
• The Privacy Rule does not prevent employees from telling colleagues or their employer about vaccination status.

What about religious exemptions?

Workers claiming religious grounds for avoiding COVID-19 vaccination also has spurred several lawsuits nationwide regarding legality of vaccine requirements, as well as whether employers are responding to exemption/accommodation requests legally. For example: New York State recently was ordered by a federal appeals court to temporarily allow religious exemptions from vaccination requirements, pending an Oct. 14 hearing in the case, after an earlier attempt to not accept religious exemptions to vaccination.

Title VII of the Civil Rights Act of 1964, which protects workers from religious and other forms of discrimination, spells out the need for employers to make reasonable accommodations for employee religious beliefs, and some states have their own laws regarding respecting religious beliefs as they relate to employer mandates.

Current guidance from the Equal Employment Opportunity Commission (EEOC) notes that once an employee notifies an employer of “a sincerely held religious belief, practice or observance” that prevents the employee from getting a COVID-19 vaccine, “the employer must provide a reasonable accommodation unless it would pose an undue hardship.”

Key takeaways

• If an employer is aware of any facts that might make them question the religious nature of such a request or the sincerity of a particular belief, practice or observance, an employer can request additional supporting information from the employee seeking the accommodation.
• “Undue hardship” in the context of Title VII is “having more than minimal cost or burden on the employer,” according to the EEOC, and is an easier standard than that used for the Americans with Disabilities Act (ADA) undue hardship standard. However, the EEOC advises employers “to consider all the options before denying an accommodation request.”
• Reasonable accommodation might include telework or reassignment, where possible.
• Under the ADA, it’s unlawful for employers to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.
• Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state and local authorities before taking adverse employment action against an unvaccinated employee.

Other resources on religious exemptions

• Venable LLP has an easy-to-use guide for employers navigating religious exemptions for COVID-19 vaccination.
• The Society of Human Resource Management (SHRM) has a nine-step guide on handling employee requests for medical or religious accommodation to a vaccine requirement.
• SHRM also has a collection of resources, such as example policies and forms regarding religious accommodation requests.
• Read NPR’s reporting on how other major industries are handling an uptick in requests for religious exemptions to vaccine requirements.

Dealing with forged or lost proof of vaccination

As more workers are required to be vaccinated for COVID-19, those who are resistant to vaccination might attempt to produce or purchase a fraudulent proof of verification. At the same time, some employees who have been vaccinated could lose the paper card given to them at the time of vaccination before creating a backup via a growing number of digital health apps/passports.

To limit the potential for forged vaccine cards, healthcare employers might consider reminding employees that the Centers for Disease Control and Prevention’s vaccine cards contain the government seal, and that it’s a violation of federal law to use and forge the government seal, punishable by up to a $5,000 fine and/or up to five years in prison.

Each state has its own registry of COVID-19 vaccinations, and some have tools to help in proving vaccination status. Several states use tools such as the MyIR platform that provide a digital, verified proof of COVID-19 vaccination, whereas other states such as Colorado and New York have dedicated apps for vaccination verification, either as a standalone digital health pass or a broader app for storing other identification (e.g., driver’s license, vehicle registration, etc.).

• Watch a video report on how to spot fake vaccine cards.
• Read more about the need for secure and trusted vaccination verification tools.
• Read more from MGMA Connection magazine about how Medicare fraud schemes have evolved during the pandemic.

What about testing for the unvaccinated?

One of the lingering unknowns around COVID-19 vaccination requirements for healthcare workers is the recent emergency temporary standard (ETS) developed by the Occupational Safety and Health Administration (OSHA). The ETS plans include a rule to require employers with 100 or more employees to either be vaccinated or be tested for COVID-19 weekly. MGMA is watching for the final wording of the ETS and will provide members with an update once it is available.

• Read more about the ETS from the Society of Human Resource Management (SHRM).
• For more about state reimbursement laws and pay for testing time, read more from Bloomberg Law.
• Subscribe to the Washington Connection newsletter for developments on this later this year.

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ADDITIONAL RESOURCES

• MGMA COVID-19 Recovery Center — The latest updates, tools and resources to help your practice navigate through the pandemic.
• MGMA COVID-19 Federal Assistance and Advocacy Center — Stay up to date on the latest waivers, regulatory updates and relief available to medical practices throughout the pandemic.
• MGMA Stat: Measuring the Impact of the COVID-19 Pandemic — Find all our COVID-19 data stories going back to the start of the pandemic.