Health Care attorney, Daniel Schulte, addresses questions related to the COVID vaccine in the latest issue of The Journal of The Michigan Dental Association (February 2021).
Question: I feel it’s important for me and all who work for me to receive the COVID-19 vaccine. Some of my employees are saying they will refuse to be vaccinated. Can I require proof that an employee has been vaccinated? Can I terminate employees or place them on leave if they refuse to be vaccinated?
Answer: On Dec. 16, 2020, the U.S. Equal Employment Opportunity Commission issued guidance on employer COVID-19 vaccination programs. One thing the EEOC’s guidance makes clear is that it is legal to ask an employee whether he or she has been vaccinated and to require proof of the vaccination. In the coming months, all employers will have to decide whether they will ask and require proof of vaccination as a condition of continued employment.
The EEOC’s guidance does not explicitly state that employers may legally require employees to be vaccinated. However, its FAQs assume that such a requirement would be legal subject to two expectations:
First, employers who require the COVID-19 vaccine as a condition of employment must recognize an exception for their employees who are unable to receive the vaccine due to a disability. Second, employers cannot require employees to be vaccinated when doing so would be contrary to a sincerely held religious practice or belief.
Employers are entitled to ask questions regarding an employee’s disability to make a reasonable determination that a disability exists. These inquiries must be job-related and consistent with business necessity. Prior to excluding an employee with a disability preventing him or her from receiving the vaccine the employer must determine that the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the employee or others, one that cannot be eliminated or reduced by reasonable accommodation. In a dental office setting such reasonable accommodation might include requiring the unvaccinated employee continuing to wear a different type and grade of PPE that vaccinated employees are no longer utilizing. For employees with a disability, all determinations of what reasonable accommodations will be made should be made on a case-by-case basis.
Read the complete Q&A in the Journal of the Michigan Dental Association on page 22.
About the author:
Daniel J. Schulte has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.
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