Mandating COVID-19 Vaccinations: Practical Guidance

Executive Summary

Healthcare organizations are permitted to require the COVID-19 vaccine for existing and prospective employees as long as the mandate does not violate any federal, state or local laws. Healthcare organizations may not mandate vaccinations for certain individuals who are protected under the Civil Rights Act of 1964 or the Americans with Disabilities Act. Healthcare organizations are allowed to verify an employee’s COVID-19 vaccination status when acting as an employer.

Recommended Actions 

• If an employee refuses a COVID-19 vaccination based on religious beliefs or a protected disability, ask the employee to submit an accommodation request form.
• Consider offering incentives to employees who provide proof of their COVID-19 vaccinations.
• Before terminating an employee for not complying with a COVID-19 vaccine mandate, consider requiring the employee to follow additional safety precautions such as frequent testing or wearing a mask.

As COVID-19 infections continue throughout the United States, many healthcare organizations are faced with the difficult task of determining how to best protect their employees and patients. Both the American Hospital Association  and the American Medical Association  have suggested that healthcare organizations should consider issuing COVID-19 vaccination mandates for their employees to reduce infections among their employees and patients.

While many healthcare organizations want to mandate COVID-19 vaccines for their employees, some are reluctant to do so because they are unsure if such mandates are allowed. This article offers some guidance.

Are Healthcare Organizations Allowed to Mandate Vaccinations?

Yes. Healthcare organizations are generally permitted to mandate the COVID-19 vaccines for existing and prospective employees as long as the mandate does not violate any federal, state or local laws — which are in flux, potentially complicating matters.

Healthcare organizations — in every state — must follow federal laws that prohibit mandating COVID-19 vaccinations as a condition of employment for certain protected employees. In addition, various state laws may impose additional constraints on employer issued COVID-19 vaccine mandates. For example, Montana recently passed a law that prohibits private employers, including healthcare organizations, from issuing vaccine mandates. 

While several states have passed laws that prohibit COVID-19 vaccine mandates for some or all state employees, no other state has passed a law like Montana’s that would prohibit healthcare organizations from mandating COVID-19 vaccination for their employees. However, many other state legislatures are currently considering bills that may prohibit or limit a private healthcare organization’s ability to issue COVID-19 vaccine mandates for their employees if enacted into law. An interactive map  shows which states have already enacted laws that affect employer vaccine mandates as well as which states that have similar legislation currently up for consideration.

Which Employees Are Exempt?

The Equal Employment Opportunity Commission (EEOC) made it clear in a recent press release  that it is legal under federal law for employers to mandate that in-person employees receive COVID-19 vaccinations with only a few exceptions. Such exceptions include employees who are entitled to protections under Title VII of the Civil Rights Act of 1964 and those entitled to reasonable accommodations under the Americans with Disabilities Act (ADA).

Healthcare organizations should be aware that some employees may have religious beliefs that are protected under Title VII which may prohibit them from receiving a COVID-19 vaccine. If an employee refuses a COVID-19 vaccination based on their religious beliefs, the healthcare organization should ask the employee to submit a religious accommodation request form . If there is an objective basis for questioning whether an employee has a sincerely held religious belief that prevents compliance with a COVID-19 vaccination mandate, a healthcare organization may request supporting documentation to confirm the employee’s religious beliefs without violating Title VII.

Healthcare organizations should also be aware of the fact that some of their employees may have a disability which prevents them from receiving a COVID-19 vaccine. If a healthcare employee declines a COVID-19 vaccination because of a disability that is protected under the ADA (which includes pregnancy), the employee should be provided with a disability accommodation request form . The employer must then make a good faith effort to confirm whether the employee has a disability protected under the ADA that may exempt the employee from the vaccine mandate.

If an employee requests an accommodation because of a disability or their religious beliefs, employers should notify the employee of their acceptance or denial of the accommodation in writing and file all related documents in accordance with the appropriate confidentiality requirements.

How Should Healthcare Organizations Verify Employee Vaccination Status?

Many employers are hesitant to request proof of vaccination due to concerns over HIPAA violations. However, according to the U.S. Department of Health and Human Services , HIPAA rules only apply to “covered entities” and do not extend to employers or employment records. Therefore, healthcare organizations are permitted to request proof of vaccination from their employees when acting as an employer.

Healthcare organizations should be careful to limit their inquiry to the employee’s COVID-19 vaccination status alone; asking additional questions may be viewed as a solicitation of disability-related information which could potentially violate the ADA. When requesting COVID-19 vaccine documentation, the employee should be advised not to provide any other medical information in addition to the proof of vaccination in order to avoid any potential ADA issues. Simply asking for an employee’s COVID-19 vaccination card may be the safest route for employers because COVID-19 vaccination cards usually contain no protected medical information.

Are Healthcare Organizations Allowed to Offer COVID-19 Vaccine Incentives to Employees?

Yes, healthcare organizations are generally allowed to offer incentives to encourage their employees to get the COVID-19 vaccine. However — because the CDC screening questions  that are asked before administering a COVID-19 vaccine will constitute a disability-related inquiry — healthcare organizations offering incentives to employees while administering the COVID-19 vaccines to employees directly through their own wellness program could potentially run afoul of the ADA. We recommend that healthcare organizations offering COVID-19 vaccine incentives simply request proof of vaccination from their employees’ third-party physicians or pharmacies instead of administering COVID-19 vaccines through their own wellness program to avoid any potential ADA issues.

What Options Do Healthcare Organizations Have to Address Unvaccinated Employees?

Healthcare organizations in most states are allowed to terminate employment or require an employee to follow additional safety precautions for failing to comply with a vaccine mandate for reasons not protected under Title VII or the ADA. Many healthcare organizations may choose to require frequent COVID-19 testing or make masks mandatory for in-person employees who have not provided proof of COVID-19 vaccination. If a healthcare organization decides to terminate employees who refuse vaccination, the healthcare organizations should first provide a reasonable amount of time for their employees to get their COVID-19 vaccinations before termination. Although there is no clear guidance on what is considered a reasonable length of time for an employee to get the COVID-19 vaccine, allowing employees up to two months to get vaccinated is a reasonable length of time in most circumstances. 

Lessons Learned

• Ensure that your healthcare organization follows the most up-to-date federal, state and local laws regarding employee COVID-19 vaccine mandates.
• Avoid asking for an employee’s protected medical information by requesting their COVID-19 vaccine card as proof of vaccination.
• Ensure information about an employee’s COVID-19 vaccination status is properly stored in their confidential employment records. 

Potential Damages

Although relatively infrequent, employers risk violations under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act for requiring the COVID-19 vaccine for protected individuals. Such claims can be costly, especially if the healthcare organization has to defend against a lengthy lawsuit and sizable damages.