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Recommendations versus requirements: Managing unvaccinated employees

August 04, 2021 16804

With a COVID-19 vaccination rate of 94% among surveyed dentists as of June, practicing dentists in California are significantly outpacing other adults’ vaccination rates for COVID-19. Many dentists are serving as trained vaccinators as well. While surveyed dentists also reported a high level of confidence in encouraging their dental teams to be vaccinated, a level of vaccine hesitancy remains that may cause practice challenges.

And now, California health care workers must show proof of COVID-19 vaccination or submit to weekly testing under a new statewide order. What are dentists’ responsibilities as employers when it comes to unvaccinated staff? And what are their employees’ rights?

The analysts at The Dentists Insurance Company continue to answer countless COVID-19-related calls from practice owners. While TDIC’s Advice Line provides guidance across diverse risk management topics, vaccination requirement continues to be a high source of concern and confusion. The following is guidance that analysts have provided to other dentists.

Can employees and new hires be required to get vaccinated?

In California, the short answer is yes, as long as the employer does not violate the Fair Employment and Housing Act. The laws may vary in other states.

Under a new state order, health care workers must show proof of COVID-19 vaccination or be tested weekly. Because weekly testing is likely to be more burdensome on the practice, employers should urge their employees to receive the COVID-19 vaccine by building vaccine confidence and facilitating vaccination.  If employers choose to require employees be vaccinated, they must consider the following:

  • Potential vaccine complications or side effects.
  • Reasonable accommodation for medical conditions, including pregnancy.
  • Sincerely held religious objections.
  • Exposure to legal risks, such as discrimination claims stemming from workplace disparities between vaccinated and unvaccinated employees.

Make an individualized assessment of each unvaccinated employee’s ability to safely perform essential job functions, which may include certification from their health care provider. Even if your vaccination policy qualifies as a legitimate health and safety requirement, some employees may be exempt from complying under certain circumstances. 

For potential new hires, employers should ask applicants vaccination questions that only pertain to the job. If you do not require employees to be vaccinated, the question of vaccine status should not enter the interview discussion. 

Can I ask for proof of vaccination?

Yes. To slow the spread of the highly infectious COVID-19 delta variant, California on July 26 issued an order requiring employers of health care workers, including dental staff, to verify that their workers are fully vaccinated against COVID-19. Health care workers who are not fully vaccinated are subject to weekly COVID-19 testing and will be required to wear surgical masks, at minimum.

The order takes effect Aug. 9 with full compliance required by Aug. 23.

According to the Equal Employment Opportunity Commission, employers may ask for proof of vaccination as it is not considered a disability-related inquiry. However, employers should ask to see a vaccination record card but request no more information than is necessary. Simply asking an employee the reason why they aren’t vaccinated may trigger disability-related protections under the Americans with Disabilities Act. Acceptable forms of proof of vaccination are listed in the state order.

More details about the state’s new vaccination and testing policy are forthcoming. The California Dental Association is engaging with policymakers about additional details on testing unvaccinated dental staff, including how the policy will be enforced and specifics on how employers can arrange for the time it takes for staff to complete weekly COVID-19 tests. Until then, dentists can review CDA’s COVID-19 Laboratory Testing Toolkit.

Can I terminate an employee who refuses to get vaccinated? 

While every situation is unique, there are options to accommodate unvaccinated employees, such as requiring them to get tested weekly for COVID-19 and wear a surgical mask under the current state order. You may also ask unvaccinated employees to work a modified shift. In California, state regulations require that all health care workers continue to wear face masks, regardless of their vaccination status. That requirement aligns with current CDC guidance for health care workers.

If these steps can be taken but you still feel strongly about requiring employees to be vaccinated, TDIC recommends speaking with an employment law attorney before implementing a mandatory policy.

Under the Fair Employment and Housing Act, employers are required to reasonably accommodate employees with a known disability or sincerely held religious belief or practice that prevents them from being vaccinated against COVID-19. Employers are prohibited from retaliating against anyone for engaging in activity protected by the Americans with Disabilities Act (AwDA). There is a strong likelihood that an employee who experiences negative employment consequences for refusing the COVID-19 vaccines could pursue a discrimination claim.

Should an employee’s vaccine status be shared with patients? 

State and federal privacy laws prohibit employers from sharing employees’ private medical information. Additionally, you are required to maintain COVID-19 vaccine documentation or status confirmation, as well as other medical or accommodation documents, in a way that is confidential and stored separately from the employee’s personnel files. Access must be limited only to those with a legitimate business need to know. 

In a recent TDIC Advice Line call, a dental team member had been affirming to patients that she was vaccinated when in fact she was not. Pressure to make patients feel comfortable may have led to this misrepresentation of her status, but the situation created multiple ethical concerns. As with any confidential health or medical information, vaccine status should not be shared. Practice leadership should encourage staff members to be vaccinated and support their decisions, but never allow them to be pressured by other staff or patients to disclose confidential information.

Proactively establish and share office guidelines with staff on how they are expected to handle patients’ inquiries about vaccination statuses so that messaging is consistent, prudent and respects staff privacy.

Should a patient’s request to be seen only by vaccinated staff be accommodated?

No. Disclosing vaccine statuses of individual staff members puts the practice at risk. Reassure patients that your office adheres to the required infection control protocols and employs the appropriate practices to ensure their ongoing safety. Walk the patient through the protections put in place to mitigate exposure: PPE protocols, staggering appointments, adhering to Cal-OSHA and Centers for Disease Control and Prevention (CDC) guidelines and more.

Balancing legal and ethical obligations with staff emotions and patient expectations can be challenging, and protecting your patients, your team and your practice should guide your decision-making. Find more employer best practices and policies in CDA’s Vaccine Confidence Toolkit. And refer to the July issue of the CDA Journal for helpful tools to build vaccine confidence among staff and patients. Stay connected to your local dental society, CDA, the CDC and state occupational safety divisions for the latest infectious disease regulations specific to California. 

TDIC’s Risk Management Advice Line is a benefit of CDA membership. Schedule a consultation with an experienced risk management analyst or call 800.733.0633. Reprinted with permission from the August issue of the CDA Journal.

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