Page 25 - HealthcareNews Jan_Feb 2021

JANUARY/FEBRUARY 2021 WWW.HEALTHCARENEWS.COM 25
HEALTHCARE LAW
A Question of Mandates
SE
successful rollout of COVID-19 vaccines and that
people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employ- ees work in close contact with others. But before doing so, employers need to consider a number of things.
Can Employers Require Vaccinations?
Yes. Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace. Many employers already require work- ers to get inoculated against certain infectious diseases.
Can Employees Object to Vaccine Mandates?
Yes. Anti-discrimination laws provide disabled and religious employees with legal protections from vaccine mandates. Employers that require employees to receive the COVID-19 vaccine must meet certain requirements under those laws.
A worker with a covered disability may seek an exemp- tion from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal. In such situ- ations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties — so long as it isn’t an undue burden for the employer. Accommodations — like telework or working in isolation from co-workers — that would allow the unvac- cinated employee to perform essential job functions would likely not be an undue burden.
According to recent guidance from the Equal Employ- ment Opportunity Commission, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may seek verification of such beliefs only if they have an objective reason for doing so.
hould Employers Require Employees to Get the COVID-19 Vaccine?
By TIMOTHY F. MURPHY
“
employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace.”
mployers have a key role to play in ensuring the
Government Vaccine Man- dates Appear Unlikely for Now
A general state vaccine
mandate does not appear
to be in the cards anytime
soon. On the federal level,
President-elect Biden has
signaled that he is not
considering a vaccine
mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupa- tional Safety and Health Administration (OSHA), would require employers to mandate a COVID-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.
Reduce Potential Legal Liability
Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recom- mendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.
Wait and See Is the Way to Go
Most Massachusetts non-healthcare employers and their employees are not going to have access to any vaccines before the spring of 2021. So most employers can wait to decide to mandate vaccines simply because there won’t be vaccines immediately available.
In the meantime, employers should be prepared to provide reliable information; reinforce other steps to protect employees and the public, like continued screening, fitness-for-duty programs, and contract tracing; imple- ment employee incentives for voluntary vaccinations; and consider mandatory rapid testing, as those products come to market, as an alternative to mandatory vaccination. u
Timothy Murphy is a partner at Skoler, Abbott & Presser, P.C., focusing his practice on labor rela- tions, union avoidance, collective bargaining and arbitration, employment litigation, and employment counseling.
Public-health Experts Warn Against Mandates for Now
Even if employers can legally mandate COVID-19 vac- cinations, U.S. Surgeon General Jerome Adams recom- mends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, noting that Pfizer’s vaccine hasn’t been fully approved yet. According to Saad Omer, a vaccinologist and infectious-disease epidemiologist at Yale University, “mandates shouldn’t be the frontline policy option.”
Avoid the Backlash
A vaccine mandate could trigger employee-morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a COVID-19 vaccine if offered one. However, other data sug- gests that Americans’ willingness to take a COVID-19 vac- cine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensi- tive to employee concerns if vaccination is mandated as soon as it becomes publicly available.
Non-union employers can unilaterally require employee
vaccinations because
Amherst Orthopedic Injury Walk-in Clinic Opens
AMHERST — Cooley Dickinson Health Care has opened its second orthopedic injury clinic. The Amherst clinic, at 170 University Dr., is in addition to the West Hatfield orthopedic injury clinic location, which opened in the fall of 2016.
The orthopedic injury clinic staff diag- nose and treat a variety of acute injuries,
including sprains and strains; sports injuries; foot, ankle, knee and hip injuries; hand, forearm, elbow, and shoulder inju- ries; fractures and dislocations; pediatric injuries; and infected nails. Depending
on the nature of the injury, residents may be able to skip a visit to a local emergency department.
If a patient is in need of more advanced care, clinic staff facilitate access to an orthopedic surgeon at Cooley Dickinson Orthopedics & Sports Medicine. Clinic staff do not treat head injuries, chronic injuries, or back pain.
The new clinic is headed by physician assistant John Hauschild, who earned
board certification from the National Commission on Certification of Physician Assistants.
Both clinics are open weekly, Monday through Friday, from 8 a.m. to 4:30 p.m. No appointment is needed at either loca- tion.