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Recommendations vs. Requirements: Managing Unvaccinated Employees

Small businesses nationwide are navigating the challenges of unvaccinated staff members. Learn best practices for dental offices, what employers can require, and how to mitigate ethical and legal risks related to sharing vaccine status.

As COVID-19 regulations and guidance evolve, dentists are still navigating updates to clinical procedures and employment protocols. While some next steps are clear, issues such as vaccine hesitancy among staff continue to cause practice challenges. What are dentists’ responsibilities as employers when it comes to unvaccinated staff? And what are their employees’ rights?

The analysts at The Dentists Insurance Company continue to answer countless COVID-19-related calls from practice owners. While TDIC’s Advice Line provides guidance across diverse risk management topics, vaccine requirements continue to be a high source of concern and confusion. The following is guidance that analysts have provided to other dentists.

Can employees and new hires be required to get vaccinated?

The short answer is yes. Federal Equal Employment Opportunity laws do not prevent an employer from requiring all employees who enter the workplace to be vaccinated for COVID-19, as long as the employer allows for reasonable accommodations under EEO and the American with Disabilities Act.

And as new mandates roll out, health care workers in some regions will be required show proof of COVID-19 vaccination or be tested weekly. Because weekly testing is likely to be more burdensome on the practice, employers should urge their employees to receive the COVID-19 vaccine by building vaccine confidence and facilitating vaccination. If employers choose to require employees be vaccinated, they must consider the following:

  • Potential vaccine complications or side effects.
  • Reasonable accommodation for medical conditions, including pregnancy.
  • Sincerely held religious objections.
  • Exposure to legal risks, such as discrimination claims stemming from workplace disparities between vaccinated and unvaccinated employees.

Make an individualized assessment of each unvaccinated employee’s ability to safely perform essential job functions, which may include certification from their health care provider. Even if your vaccination policy qualifies as a legitimate health and safety requirement, some employees may be exempt from complying under certain circumstances.

For potential new hires, employers should ask applicants vaccination questions that only pertain to the job. If you do not require employees to be vaccinated, the question of vaccine status should not enter the interview discussion. 

Can I ask for proof of vaccination?

Yes. To slow the spread of the highly infectious COVID-19 delta variant, some states, including California, now require employers of health care workers, including dental staff, to verify that their workers are fully vaccinated against COVID-19. Health care workers who are not fully vaccinated are subject to weekly COVID-19 testing and will be required to wear surgical masks, at minimum.

According to the Equal Employment Opportunity Commission, employers may ask for proof of vaccination as it is not considered a disability-related inquiry. However, employers should ask to see a vaccination record card but request no more information than is necessary. Simply asking an employee the reason why they aren’t vaccinated may trigger disability-related protections under the Americans with Disabilities Act. Acceptable forms of proof of vaccination are listed in each state or region’s order, as applicable.

Can I terminate an employee who refuses to get vaccinated? 

While every situation is unique, there are options to accommodate unvaccinated employees, such as requiring them to wear face masks, observe social distancing with co-workers or work a modified shift. If these steps can be taken but you still feel strongly about requiring employees to be vaccinated, TDIC recommends speaking with an employment law attorney before implementing a mandatory policy.

Under the Americans with Disabilities Act, employers are required to reasonably accommodate employees with a known disability or sincerely held religious belief or practice that prevents them from being vaccinated against COVID-19. Employers are prohibited from retaliating against anyone for engaging in activity protected by the AwDA. There is a strong likelihood that an employee who experiences negative employment consequences for refusing the COVID-19 vaccines could pursue a discrimination claim.

Should an employee’s vaccine status be shared with patients? 

State and federal privacy laws prohibit employers from sharing employees’ private medical information. Additionally, you are required to maintain COVID-19 vaccine documentation or status confirmation, as well as other medical or accommodation documents, in a way that is confidential and stored separately from the employee’s personnel files. Access must be limited only to those with a legitimate business need to know. 

In a recent TDIC Advice Line call, a dental team member had been affirming to patients that she was vaccinated when in fact she was not. Pressure to make patients feel comfortable may have led to this misrepresentation of her status, but the situation created multiple ethical concerns. As with any confidential health or medical information, vaccine status should not be shared. Practice leadership should encourage staff members to be vaccinated and support their decisions, but never allow them to be pressured by other staff or patients to disclose confidential information.

Proactively establish and share office guidelines with staff on how they are expected to handle patients’ inquiries about vaccination statuses so that messaging is consistent, prudent and respects staff privacy.

Should a patient’s request to be seen only by vaccinated staff be accommodated?

No. Disclosing vaccine statuses of individual staff members puts the practice at risk. Reassure patients that your office adheres to the required infection control protocols and employs the appropriate practices to ensure their ongoing safety. Walk the patient through the protections put in place to mitigate exposure: PPE protocols, staggering appointments, adhering to OSHA and Centers for Disease Control and Prevention (CDC) guidelines and more.

Balancing legal and ethical obligations with staff emotions and patient expectations can be challenging, and protecting your patients, your team and your practice should guide your decision-making. Stay connected to your local and state dental societies, the CDC and state occupational safety divisions for the latest infectious disease regulations specific to your region.

TDIC’s Risk Management Advice Line is a benefit to TDIC policyholders. To schedule a consultation with an experienced risk management analyst, visit tdicinsurance.com/RMconsult or call 800.733.0633. For Risk Management guidance in Idaho, Oregon or Washington, call 800.452.0504.

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