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Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

We hosted a very informative Fast Break session last week discussing what healthcare providers need to know as they prepare their employees to return to work and try to get back to a sense of normalcy. If you weren’t able to join us for the live program with Daniel Kadish, one of the leaders of Morgan Lewis's COVID-19 compliance and counseling team, be sure to access the presentation on demand or peruse the main takeaways below.

  • Right now, the clear answer is there is no federal requirement for employers to provide or offer to provide the vaccine, but it is also important to note that there is very much not a prohibition at the federal level, or as of now, at the state level on any employer mandating or recommending the vaccine to their employees.
  • At the federal level, the Equal Employment Opportunity Commission (EEOC) has said that employers can require individuals to be vaccinated, so long as they make accommodations for individuals who cannot be vaccinated due to a disability or sincerely held religious belief.
  • According to the EEOC, vaccine requirement is a permissible safety-based qualification standard under the ADA, if an unvaccinated employee poses a direct threat to the health and safety of others in the workplace.
  • This direct threat is what allows employers to put in place a vaccine requirement, because you can take the position, particularly in a healthcare setting, that anyone who is interacting with other individuals, even if it’s not patients, could present a direct threat of spreading COVID-19 to, and the best way to prevent that direct threat or, at least a very strong way to prevent that threat is by having people vaccinated.
  • When discussing the possibility of mandating vaccines for your workforce, you should be practically considering vaccine supply and data, implementation (accommodations, pay for time spent, reimbursement), impact on employee morale, and potential turnover and staffing shortages.
  • As of now, employers have very broad discretion in encouraging employees to get vaccinated, allowing for flexibility to decide what is best for your workforce. This can include various incentives as well.
  • While employers can ask an employee if they've been vaccinated, it could be risky. If they have not been, the answer for why they haven't been vaccinated could very well be some type of protected health reason.
  • Employers can require employees to show proof of vaccination, as well as require visitors and others to show proof of vaccination. If your organization has a credential requirement, you might consider adding a full COVID-19 vaccination as one of those credentials.
  • As of now, the best practice would be to maintain current masking, social distancing, and cleaning protocols.

To access this presentation at length, visit our event page.

Be sure to join us next month for our annual joint Fast Break-May-rathon, set to discuss digital health updates and what’s new in 2021 with Morgan Lewis healthcare industry leader Michele Buenafe. Join us on May 27 at 3 pm ET.

Don't forget you can view any of our previous webinars on our Fast Break series page >>

Sign up for the Fast Break mailing list >> 

RETURN TO WORK RESOURCES

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.