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Employer Vaccine and Booster Policies and Best Practices

October 03, 2022 8237

For dentists who are also employers, there are considerations and best practices regarding employee vaccination, including vaccine policies, employer mandates, and employee vaccine reactions. Find answers to common questions here.

Should I make the vaccine mandatory for my employees?

Employers in health care settings have the right to establish legitimate health and safety standards, policies, and requirements so long as they are job-related and consistent with business necessity. However, CDA recommends as a best practice that employers encourage, but not require, employees, to receive the COVID-19 vaccine.

Policies mandating vaccinations are more likely to be appropriate for employers in the health care industry. But legal risk and complications, including the potential for side effects from the COVID-19 vaccine, and the need to consider a reasonable accommodation for medical (including pregnancy-related conditions) and sincerely held religious objections can make encouraging and facilitating an employee vaccination a better option for businesses than requiring it.

Employers need to determine if an employee cannot meet the requirement to vaccinate, does that individual pose a “direct threat” to the business?  An employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The consideration should include, for example, the level of community spread, state and federal guidance, as well as a certification from the employee’s health care provider.  Even if an employer’s vaccination policy is mandated to meet county requirements or qualifies as a legitimate health and safety requirement for the business, under certain circumstances, some employees may nonetheless be exempt from complying.

There is a strong likelihood that employees who experience negative employment consequences for refusing COVID-19 vaccines could present their cases to courts. If they succeed, your practice will be at risk if you choose to require COVID-19 vaccination — and more so if you terminate an employee for vaccine refusal. Employers can consider options for accommodating employees who cannot vaccinate, such as wearing a face mask, working at a social distance from coworkers or others that enter the practice or working a modified shift.

If employers feel strongly about requiring employees to be vaccinated, CDA Practice Support recommends speaking with an employment law attorney before implementing a mandatory policy.

How can I encourage my staff to become vaccinated for COVID-19?

There are multiple resources available, but the CDC and the CDPH offer tip sheets and various resources to help bolster vaccine confidence - How to Build Healthcare Personnel Confidence in COVID-19 Vaccines.

I’ve heard many people feel sick for several days after receiving the vaccine. Will my employees need sick time off following the vaccine? Do I pay them for the time off? Do they qualify for paid time off?

First, CDA recommends staggering the distribution of the vaccine among the dental team in the event that team members experience adverse reactions within the same window of time. Consider asking your front office team to stagger the days in which they receive the vaccine and the same for your back-office team. This will help the practice maintain staff coverage. Employees who request time off due to the vaccine side effects may request to use any available employer-provided paid sick leave, CA Supplemental Paid Sick Leave (if a covered employer) or vacation time if approved by the employer.

Any reactions to the COVID-19 vaccine must be reported to the employee’s medical care provider, or to the local public health department if the individual does not have a medical care provider.

In the event that an employee experiences long-term health effects and requires a leave of absence, employers with 5 or more employees must consider if an employee is eligible to take up to 12-weeks of job-protected leave under CFRA or consider leave as a reasonable accommodation under disability laws. 

Effective, February 19, California  expanded 2022 COVID-19 Supplemental Paid Sick Leave (SB 114). Under SB 114’s new provisions, California employers of 26 or more employees are required to provide up to 80 hours of COVID-19 supplemental paid sick leave. All employees working for covered employers are eligible to take up to 24 hours of paid sick leave if they are attending an appointment to receive a COVID-19 vaccine or are experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework. Employers cannot require an employee to use other paid or unpaid leaves before using COVID-19 supplemental paid sick leave. Update: Under AB 152, CA Supplemental Paid Sick Leave has been extended through December 2022.

If an employer has already provided supplemental paid leave after Jan. 1 to an employee for any of the qualifying reasons and if the amount of leave is equal to or greater than the required amount, the employer is allowed to count those hours toward the new leave requirements.

Can an employer be held liable if they mandate an employee get the vaccine and the employee has side effects from the vaccine?

If an employee reports serious adverse side effects (e.g., anaphylaxis) from the COVID-19 vaccine as a result of an employer’s mandatory policy, the employer should contact their workers’ compensation carrier. Additionally, until 12/31/2022, covered employers may offer the use of up to 24 hours of available 2022 COVID-19 Supplemental COVID-19 Paid Sick Leave. All employers may offer the use of California Paid Sick Leave.

Can an employer be held liable if an employee has underlying health issues, gets vaccinated, and has serious health complications and/or death attributed to having taken the vaccine under this new mandate?

Technically, employer liability could be found if they require an unvaccinated employee (regardless of health status) to get the vaccine in order to continue their employment and the employee develops a serious health complication as a direct result of receiving the vaccine. However, this would likely only apply in a situation where an employee did not want to get vaccinated and felt they were being forced to by their employer. In a case where an employee reports having preexisting conditions as a reason for declining the vaccine, the employee should be afforded the opportunity to be evaluated by their personal physician to determine if they should be cleared for the vaccine or be medically exempt.

What is an employer’s legal exposure if an employee refuses to be vaccinated?

Currently, there is no law that requires employers to vaccinate all employees with the COVID-19 vaccine. It is still too early to fully provide a legal liability response. Theoretically, it may be possible that, in the future, failure to provide or offer the vaccine to employees could be a workplace safety violation – but this is purely speculation. There is still much to be known. And, some states are introducing bills to prohibit mandating vaccinations. If passed, that will change the liability exposure for employers.

At this time, we are recommending that employers strongly encourage employees to obtain the COVID vaccine. Employers who decide to mandate the vaccine for all employees must consider reasonable accommodations for any employee requests not to be vaccinated due to a disability, medical contraindications, or sincerely held religious beliefs.

It is possible that an employer may never have 100% of their employees vaccinated. Having a fully vaccinated staff does not completely reduce an employer’s liability or obligations to maintain workplace safety standards.

Can dentists incentivize their staff to obtain COVID-19 vaccines?

The Equal Employment Opportunity Commission (EEOC) guidance states that employer incentives are allowed if the incentive is not so substantial as to be coercive. Of course, that likely depends on the circumstances, e.g., as compared to regular compensation or other bonuses for employees. Other incentives may include additional paid time off or making contributions to health savings accounts. Employers cannot offer additional incentives for employees’ family members to be vaccinated.

It’s important to note that under the Americans with Disabilities Act, employers must provide the incentive in an alternative way to employees who have a medical condition, disability or sincerely held religious belief that prevents them from being vaccinated. Under the ADA, employees must be able to enjoy the same “benefits and privileges of employment” as those without disabilities/religious beliefs (unless undue hardship is established). Unfortunately, the EEOC Guidance document did not address this specific question. Most legal guidance has been to provide alternative mechanisms for obtaining the incentive. For example, Kroger grocery stores offered a $100 incentive for employees to get the vaccine. Employees with a disability or religious belief that prevented them from getting the vaccine could qualify for the incentive by completing a health and safety education course.

What circumstances would allow for an employee exemption from vaccination? Does the employee need to ask for a “reasonable accommodation” specifically by name?

Employers and managers are responsible for communicating with employees about vaccine compliance and should know how to recognize an accommodation request from an employee. If an employer should implement a mandatory vaccine policy, as a best practice anyone responsible for handling accommodation requests should have clear information on the next steps.

Employees may be exempt from compliance with a mandatory vaccination policy if they have a sincerely held religious objection or a qualifying disability under the federal Americans with Disabilities Act (ADA) or State of California Civil Rights Department (CRD) that prevents them from safely receiving the vaccine. Specific to the Pfizer and Moderna COVID-19 vaccines, this includes factors such as whether the employee is pregnant, nursing, is allergic to ingredients of the vaccine, or has a compromised immune system. Upon receiving a request to be excluded from a vaccination requirement as an accommodation, whether due to disability or religious-related reasons, an employer must engage in an interactive process with the objecting employee to determine if they can provide the employee with a reasonable accommodation that does not pose an undue hardship for the employer.

If an employee is unvaccinated due to “sincerely held religious beliefs,” how can we verify this other than taking the employee’s word for it?

For religious accommodations, the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar; the employer should ordinarily assume that an employee’s request for religious accommodation is based on sincerely held religious beliefs. Employers should ask employees to provide a written request and document the discussions and accommodation.

Can a dentist require a letter from a religious leader of the employee for a religious exemption?

Legally, an employer can require a letter. However, do so with caution. Generally, employers should assume a request for religious accommodation is based on a sincerely held religious belief. However, according to the EEOC, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a “limited factual inquiry and seeking additional supporting information.” A request for additional documentation shouldn’t differentiate from religious accommodations for other purposes.  Employers with strong questions about the employee’s religious belief should consult with legal counsel before requesting further information from an employee based upon a religious accommodation request.

We recommend you use the sample form for religious accommodations.

Which religions have formally declared their opposition to the COVID-19 vaccines?

Title VII of the Civil Rights Act of 1964 defines religion to include “all aspects of religious observance and practice as well as belief.” It would be difficult to provide a specific list for an employer to reference. Employers should ask the employee to provide a written request explaining their need for religious exemption. Employers must reasonably accommodate employees sincerely held religious, ethical, and moral beliefs or practices unless doing so would impose an undue hardship on the employer. Employers should seek legal counsel before denying a religious accommodation.

Does the doctor’s note for the vaccine exemption have to be from a U.S. licensed physician?

Complete and authentic medical certifications are essential to prevent abuse. The certification should make sense. For example, did the employee recently move from a foreign country? With the employee’s permission, an employer may attempt to contact the health care provider in order to authenticate the note. Employers should not seek additional medical information about the employee’s condition but reach out only to verify authenticity.

If an employer has a “good faith, objective reason” to doubt the validity of the medical certification that an employee provides for their own serious health condition, the employer may require the employee to obtain the opinion of a second health care provider. The employer must pay costs associated with obtaining a second opinion.

If all of my employees are vaccinated, do I still have to implement the extra COVID-19 precautions (i.e., N95/face shield/HEPA filters/staggered lunch breaks)?

Most COVID-19 precautions, such as masks, respirator use, and physical distancing will remain in place. Starting June 15, if the employer has documented all employees are fully vaccinated, then employees can meet in a room without masks or physical distancing. Masks must be worn and physical distancing must occur if anyone who is not fully vaccinated is present in a room. A fully vaccinated employee need not be prevented from working after close contact with a COVID-19 positive individual as long as the employee is not experiencing symptoms of the virus.

Do I need to pay my employees for their time and costs associated with receiving the COVID-19 vaccine?

As of  February 19, employers of 26 or more employees must comply with 2022 California Supplemental COVID-19 Paid Sick Leave which mandates that employees who are unable to work or telework in order to obtain a COVID-19 vaccine, or who are recovering from complications of the vaccine be paid up to a maximum of 80-hours (dependent on qualifying reasons and documentation). Employers cannot require an employee to use other paid or unpaid leaves before using 2022 COVID-19 Supplemental Paid Sick Leave. CA SPSL expires 12/31/2022.

SB 114 took effect February 19 but applies retroactively to Jan. 1, 2022. This means employers are required to make retroactive payments for leave taken for any of the qualifying reasons between Jan. 1 and February 19 upon oral or written request of the employee. For more information visit dir.ca.gov.

Employers with 25 or fewer employees who have voluntary policies do not require an employer to pay employee costs associated with the vaccine or time obtaining the vaccine. Most health insurers are covering the cost of the vaccine. However, employers who encourage employees to obtain the vaccine may consider reimbursement of costs (when applicable) and compensation of time to obtain it in order to remove any barriers for employees who may be reluctant to receive the vaccine. If you require employees to obtain the vaccine, then you are required to compensate your employees for their time and costs not covered by their health insurance associated with obtaining the vaccine.

What is an employer’s legal exposure if an employee refuses to be vaccinated?

Currently, there is no law that requires employers to vaccinate all employees with the COVID-19 vaccine. It is still too early to fully provide a legal liability response. Theoretically, it may be possible that, in the future, failure to provide or offer the vaccine to employees could be a workplace safety violation – but this is purely speculation. There is still much to be known. And, some states are introducing bills to prohibit mandating vaccinations. If passed, that will change the liability exposure for employers.

At this time, we are recommending that employers strongly encourage employees to obtain the COVID vaccine. Employers who decide to mandate the vaccine for all employees must consider reasonable accommodations for any employee requests not to be vaccinated due to a disability, medical contraindications, or sincerely held religious beliefs.

It is possible that an employer may never have 100% of their employees vaccinated. Having a fully vaccinated staff does not completely reduce an employer’s liability or obligations to maintain workplace safety standards.

Can I have my employee, who refuses the vaccine, sign a waiver to release my liability if that employee transmits COVID-19 to a patient or another employee?

A waiver signed by an employee who refuses the vaccine may not provide an employer with liability protection from patients or other employees. Continue to follow standard COVID-19 prevention precautions regardless of employee vaccinations until further notice.

Can I inquire about a potential new hire’s vaccine status?

Employers should only ask applicants vaccination questions that pertain to the job. Employers may inquire about an applicant's vaccine status, but should refrain from asking additional questions should the candidate reveal they are not vaccinated. 

Disability laws prohibit employers from asking applicants questions that are likely to reveal the existence of a disability before making a job offer. There is a legal risk of learning of an employee's disability prior to making a hiring decision and the potential legal risk of deciding not to hire whether based on that knowledge or not.

Asking the vaccine status of employees and candidates in and of itself is not a disability-related inquiry. However, for employers who require employee vaccines, any follow-up questions, such as asking a candidate why they didn't receive a vaccination, should be reserved until after making a conditional written job offer.

Employers who have a mandatory vaccine policy in place may require that new hires be vaccinated by the first day of work, provided they accommodate those who can't receive the vaccine for disability- or religious-based reasons.

Job postings may include the requirements of the position. If your practice requires employees to be vaccinated against COVID-19 because you are required by law, or have chosen to implement a mandatory policy, it's important to let your applicants know your expectation. Keep in mind that candidates and employees are entitled to a reasonable accommodation if they cannot be vaccinated for medical or religious reasons. It is important to add a qualifier to the vaccination requirement, for example: "We require all employees to be vaccinated against COVID-19 unless they are entitled to a reasonable accommodation under applicable law."

My patients are asking about my employee’s vaccine status, can I share their vaccine status with others?

No. State and federal privacy laws prohibit employers from sharing employees’ private medical information. Further, employers required to maintain COVID-19 vaccine documentation or other confirmation of employee COVID-19 vaccine status (and other medical and accommodation documents) must be kept confidential and stored separately from the employee’s personnel files with limited access to anyone without a legitimate business need to know.

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