This comprehensive blog by Al Anthony Mercado, Esq., of Fager, Amsler, Kelly & Schoppmann, LLP, will inform you of the legal considerations surrounding mandatory COVID-19 vaccination for dental employees.

Vaccination to COVID-19 represents an answer to some of the health issues of the pandemic while simultaneously posing a legal quagmire for dental practices regarding employee vaccination. This article will explore the legal issues surrounding employee vaccination. Given the complexity of the legal issues, it is recommended that before the implementation of any employee vaccination policy that the reader consult with employment counsel as well as their human resources personnel regarding their specific situation.

Mandatory Vaccination: The question is whether in the absence of a government mandate for vaccination, could, and should, dental practices mandate a COVID-19 vaccination for employees? Unfortunately, the answer is not simple. In fact, there is no general “yes” or “no” but rather a set of factors for a dental practice to consider on an individualized basis.

Key Factors for Consideration:

  • The Need for a Vaccinated Workforce
  • Can a Dental Practice Mandate Vaccination of its Employees?
  • Compliance with Employment Laws

Assess the Need for a Vaccinated Workforce:

  • Workforce size — are there 15 or more employees?
  • Physical size of the office — is there room for social distancing in accordance with CDC and other recommendations? Are there physical barriers?
  • Ventilation systems
  • Employees roles (which employees have contact with patients)
  • Benefits of vaccination for the workforce, patients, third-party vendors
  • Potential liabilities for having an unvaccinated workforce

Employers face potential liability under workers’ compensation law for creating or allowing conditions to exist for on-site COVID-19 exposure to employees. This would include employee-to-employee exposure. Employers also potentially face liability under negligence law for allegations of COVID-19 exposure to patients and third-party vendors. While causation could be a strong defense in such liability cases, it would not preclude the case from being brought in the first place. In this regard the benefits of a vaccination policy for employees are clear.

Can an Employer Legally Mandate Vaccinations for Employees? As of this time, New York State and the Federal Government have not made vaccination of healthcare employees mandatory.

In March 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” in response to the COVID-19 pandemic. Therein, the EEOC suggests that employers may require vaccination of employees so long as the employer considers the need for accommodations based upon an employee’s disability and sincere religious beliefs.

More specifically, the EEOC has taken the position that COVID-19 is a “direct threat” to health or safety in the workplace. In addition, The EEOC update in response to the COVID-19 pandemic states:

“*NOTE ABOUT 2020 UPDATES: The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19). Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public. The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace.”

Compliance with the Americans with Disabilities Act: Accommodating Disabilities and Sincere Religious Beliefs

If the dental practice has 15 or more employees, any staff vaccination requirement would be subject to federal legal requirements to accommodate disabilities, including pregnancy-related disabling health conditions (i.e., preeclampsia, hyperemesis) under the Americans with Disabilities Act (ADA), as well as genuinely held religious beliefs under Title VII of the Civil Rights Act of 1964 (Title VII).

Americans with Disabilities Act (ADA): In general, the ADA requires employers to provide a “reasonable accommodation” and non-discrimination based on disability. It also provides rules and limitations on employer medical examinations and inquiries related to an employee’s disability.

Regarding “reasonable accommodation” under the ADA, the dental practice should consider:

  • Risk to substantial harm to the health and safety of others (including other staff members and patients)
  • Whether the pre-vaccine measures such as masks, social distancing, shields, etc. are still effective
  • If the pre-vaccine measures are no longer effective, the dental practice should document how they are no longer effective and consider job-adjustment, reassignment, or unpaid leave
  • The dental practice should document if an accommodation creates an “undue hardship” on the practice and describe the factors and analysis in detail

If an individual with a disability poses a “direct threat” despite reasonable accommodation, he or she may not be protected by the nondiscrimination provisions of the ADA. The employer should conduct an individualized assessment of four factors in determining whether an unvaccinated employee poses a “direct threat” to the workforce and patients.

  1. The duration of the risk
  2. The nature and severity of the potential harm
  3. The likelihood that the potential harm will occur
  4. The imminence of the potential harm

Assessments of whether an employee poses a “direct threat” in the workplace must be based on objective, factual information, “not on subjective perceptions . . . [or] irrational fears” about a specific disability or disabilities. A conclusion that there is a “direct threat” would include a determination that an unvaccinated employee will expose others to the virus at the worksite.

Title VII of the Civil Rights Act of 1964: Sincerely held religious beliefs protected under Title VII of the Civil Rights Act of 1964 may entitle an employee to legally refuse mandatory vaccination.

The failure to reasonably accommodate a qualified individual based upon disability or religious beliefs can give rise to a discrimination claim. Edwards v. Elmhurst Hospital is a cautionary tale for employers in mandating vaccinations of employees. In that case, a healthcare worker brought a discrimination action against his employer for discrimination under Title VII based upon his refusal to take the H1N1 Flu vaccine as required by his employer on religious grounds. The employer took disciplinary action against the employee based upon the refusal. Ultimately the case was dismissed, but not before the court found that the employee had a bona fide religious belief.

Given the complex matrix of legal issues surrounding ADA and Title VII compliance, consultation with employment counsel must be done before implementing any vaccination policy with employees to avoid violating the ADA and Title VII.

Other Legal Considerations:

  • NYS and local employment regulations
  • Whether the employees are “at-will” or are the employees covered by a collective bargaining agreement/contract
  • Whether the workforce include independent contractor dentists
  • Paid time-off for vaccinations
  • Verification of vaccination: This should be limited to employee name and whether the vaccination has been administered

Voluntary Employee Vaccination: As an alternative to a mandatory vaccination policy, dental practices can consider a voluntary vaccination policy. It should be noted that a voluntary vaccination policy must still comply with the ADA and Title VII, and much of the same analysis would apply to the development and implementation of such a policy. Some suggestions for obtaining voluntary compliance include:

  • Providing employees with factual information about the vaccines to assist the employees in making a decision
  • Providing employees with information about the benefits of a vaccinated workforce
  • Providing employees with the CDC recommendation regarding vaccination and encourage them to follow the recommendations found here
  • Providing employees with logistical information in order to assist them in getting vaccinated
  • Providing paid time-off for vaccination

Development of an Employee Vaccination Policy Now: Whether mandatory or voluntary, it is important that as an employer you develop an employee vaccination policy now. Such a policy will provide your employees with guidance on vaccination expectations in the work environment. The existence of such a policy also helps protect the dental practice against claims of failing to take action to prevent COVID-19 exposure (whether workers compensation or negligence).

Development of such a policy begins with the assessment of need and includes a dialogue with employees about their position on the COVID-19 vaccination. As outlined above, employers must be careful not to ask disability-related questions of employees. Employees can be given educational information from CDC about the vaccine and assistance with the logistics of receiving the vaccination.

After careful consideration of the key factors described above and consultation with employment counsel your dental practice will be able to decide whether a mandatory or voluntary vaccination policy is appropriate and develop an individualized policy to meet your business needs.

If you would like to read other information for dentists, visit our resources page. Policyholders also have access to MLMIC’s toll free 24/7 Legal Hotline: (855) FAKS-LAW (1-855-325-7529). Our experts are available to help you address any challenges that may arise.