In our latest Fast Break session and on the heels of recent announcements from the Biden-Harris administration and the US Food and Drug Administration’s (FDA’s) granting of full authorization for the Pfizer vaccine in August, we were joined by Dan Kadish, a Morgan Lewis labor and employment associate and one of the leaders of our Morgan Lewis COVID-19 vaccine task force, to discuss how these updates may impact employers in the healthcare industry.
If you weren’t able to join us in real time, we recap key takeaways from the program below.
The legal field has coalesced around the conclusion that vaccine mandates are perfectly legal, but of course, as nothing is ever that simple, there are a few caveats – collecting vaccine information and dealing with accommodation requests.
Federal Vaccine Mandates
Federal law permits employers to mandate COVID-19 vaccination for employees physically entering a workplace. Further, federal antidiscrimination laws permit vaccine mandates so long as employers abide by reasonable accommodation requirements in Title VII and the American with Disabilities Act (ADA) for persons with sincere religious beliefs and disabilities. Following full authorization of the Pfizer vaccine on August 23, there is now no longer a requirement that companies wait for final authorization to impose vaccine mandates. There are now clear judgements, decisions, and analysis supporting vaccine mandates (see our previous LawFlash for more details).
Regarding states’ positions on mandates and the healthcare industry, states including California, New York, Washington, and Hawaii have said healthcare workers have to be vaccinated, with some going even further to include nonemployees that work in healthcare settings, such as vendors and non-direct healthcare employees to be vaccinated as well. For more information on various states’ positions, view our program.
Collecting Vaccine Information
Employers have discretion when verifying vaccination status, whether it be requiring employees to submit a copy of their Centers for Disease Control and Prevention (CDC) vaccine card to a human resources information system, completing a form providing vaccination information, using a third party to collect, etc. An employer’s decision on which system to use will depend on the nature of its workforce and the resources available, along with any state or local requirements. In general, vaccination status should only be shared on a need-to-know basis.
Under the ADA and Title VII, respectively, an employer must provide reasonable accommodations to those unable to be vaccinated due to a medical condition or a sincerely held religious belief, unless it would pose an undue hardship. Employers do not have to accept employee attestation immediately and can probe to get more information, though it may be a time intensive process.
When verifying medical accommodation requests, employers can request documentation from a healthcare professional showing that the person has a medical condition, and the person needs the requested accommodation as a result of functional limitations stemming from that condition. When verifying religious accommodation requests, employers can request documentation including a letter from a pastor or an employee statement/explanation of religious beliefs.
Check out our previous LawFlash, New Vaccine Requirements for Covered Federal Contractors and Private Employers with 100+ Employees, for more information on vaccine mandates.
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