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Employer Best Practices and Policies

March 16, 2022 7170

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.

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.

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.

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 much controversy surrounding mandating an Emergency Use Authorization (EUA) vaccine. The FDA has provided EUA use of the vaccines, which specifically requires providers to ensure patients (your employees) understand and have the option to refuse treatment.

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.

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 California Fair Employment and Housing Act (FEHA) 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.

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.

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.

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 the COVID-19 FFCRA 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 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 COVID-19 supplemental paid sick leave. All employees working for covered employers are eligible to take 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.

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 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 or weekly testing for unvaccinated employees, any follow-up questions, such as asking a candidate why they didn't receive a vaccination or willingness to submit to weekly testing, 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.

My employee has been fully vaccinated, but has requested an accommodation for a continuing underlying condition, must I comply with this request?

Employers must consider a request for accommodation and enter into the interactive process in accordance with disability laws to determine if there is a disability-related need for reasonable accommodation, regardless of their vaccine status.

As an encouragement for voluntarily receiving the vaccine or for providing their vaccine documentation, may I offer my employees an incentive or gift?

Yes. This is not a disability-related inquiry and employers may offer an incentive to employees for sharing their vaccine information voluntarily. The information should be kept confidential.

Employers may offer an incentive to encourage employees to get the vaccine; however, the incentive should not be so large as to be coercive or pressure employees into sharing personal disability-related or private medical information.

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