How can medical practices reduce the chance of employees resisting, or successfully suing over, vaccine mandates? Health care attorney Michelle Greenberg explains that the keys lie in explaining vaccine policies clearly, ensuring that all employees understand them, and applying them equally and fairly.
President Biden’s employer mandate for COVID-19 vaccinations exempts businesses with fewer than100 employees, a category that includes many medical practices. But that exemption creates potential problems for small practices if employees decline to get vaccinated: How do practices balance the rights of employees against the need to protect patients, employees and physicians against COVID?
To help shed light on this question, Medical Economics recently interviewed Michelle Greenberg, JD. Greenberg is a partner in the law firm Frier Levitt in Pine Brook, New Jersey specializing in health care and commercial litigation. The interview has been edited for space and clarity.
Medical Economics: President Biden said recently that employees of businesses with more than 100 employees have to either be vaccinated or tested weekly for COVID. For smaller businesses, which is a category that includes many medical practices, what can or can't they do as far as mandating COVID vaccination or testing is concerned?
Michelle Greenberg: So the president’s mandate does lead to the question of what do practices with less than 100 people do? Many of our clients fit that category and have been asking those questions. And our guidance has basically been, as long as your policies comply with the law, as long as they are disseminated to everyone so that they understand what's going on, and that they're applied equally and fairly, that those can be instituted.
ME: Who makes the applicable law? Is it the local jurisdiction, the state, or Congress? Where does the law come from?
MG: It's a combination, not just with regard to COVID, but in many different parts of our regulations, there are those that come from the federal government, those at the state level, and even some that applies specifically at the at the local county or city level. So there's a variety of them all enforceable in different parts.
ME: That's a lot to keep track of.
MG: It certainly is, and with the world that we're living in right now with COVID, and the vaccine mandates and when we were back with social distancing, and those mandates, it is a lot to take into consideration, and it does present issues for people practices of employers of how to maintain the proper standards. And again, I'll use the word fluid. It's a very fluid world we're living in right now.
ME: Some Republicans are already saying that they're going to challenge the President's mandate in court. They're claiming that it's unconstitutional.
MG: Yes, I did hear that. You know, I see what the law says, I encourage my clients to make sure that they comply with it. And I think what we're looking at right now is how do we protect ourselves and our vulnerable populations? And what about mandating vaccines for those receiving Medicare and Medicaid? These are all things that will be challenged as to constitutionality. Can the president implement something that ties into federal funds? And again, with the concept of protecting the public, it will be interesting to see how they're enforced, what the challenges are, and ultimately how the courts rule on it.
ME: Under what circumstances might an employee of a medical practice, or any other business, seek an exemption from an employer mandate?
MG: If an employee seeks to avoid the vaccine mandate there are two bases for doing so. One is to demonstrate a medical basis, similar to a disability claim. You need to have a doctor say, ‘My patient suffers from this condition and having the vaccine is contraindicated.’
Likewise, there is closely held religious beliefs which are a little more subjective. Because you don't come in with a note and say, “I have a religious exemption.” So that is going to be another interesting area for people who decide that it is against their closely held religious beliefs to get vaccinated.
ME: How would a business mandating vaccination for its employees word that so as to minimize their chance of being sued, or facing legal resistance?
MG: “Minimize the chance of being sued” is the best question I’m faced with on a daily basis. As I say to all my clients, the best response is application across the board. Making sure things are clearly defined, so there is no or very limited basis for someone to say they didn’t understand what was expected.
Also, enforcing those policies across the board. Requiring someone who has a religious belief to present that. And again, being done in as confidential way as possible, so as to avoid having someone feel like they’re being picked on or being discriminated against. We advise our clients often about how to best avoid liability, and we tell them as long as your reason for doing something is not discriminatory you have to make a business decision. You have to do what’s right for your business, for your practice, your patients, and your employees who do follow your policies.
ME: So uniformity and clarity and transparency are the keys?
MG: Those are three great words, absolutely. But keep in mind that not everything fits into those so neatly. So it’s really engaging in a process of hearing out your employee and why that employee doesn’t feel comfortable getting the vaccine and trying to find a solution.
Is it a situation where the employee can work in a different space? Maybe the employee can work from home? There should at least be an exploration of how we can avoid terminating an employee who doesn’t comply with a vaccine mandate and avoid the potential for litigation.
But that doesn’t always work for the practice. So going back to one of your earlier comments, what about those under-100 employee practices? They can’t have their practice suffer because of one employee.
ME: What legal recourse does an employee have if they object to a vaccination mandate?
MG: Currently, and especially in the health care industry, what we’ve been hearing and seeing is that so long as the practice is enforcing a mandate that is permitted and doing it in a manner that is evenhanded, they can terminate an employee. Arguably the employee can sue and claim discrimination. We hope that would not be the case but the way the mandates are coming out now the employee is free to go find another job.
Especially in the health care industry, an employee can look for and take another job, but a patient may not have that same ability to say “I’m not going to go to this doctor anymore because they don’t have a vaccine mandate.” Patients in nursing homes, in hospitals, in practices may not have that same ability to just go and find another physician.
Remember, the mandate is getting vaccinated to remain employed. It’s a condition of employment. So the employee has the right to say “I don’t want to get vaccinated and I’m going to go find another job where I don’t have to.” And some of those jobs might have a vaccine mandate but with an exception. If you don’t want to get the vaccine you can get tested once or twice a week. There are practices and other industries where that is an option.
ME: Conversely, are employers obligated to inform their other employees if an employee gets an exemption from being vaccinated?
MG: That’s where you begin infringing, or potentially infringing, on confidentiality and start getting to the risk of are we giving out too much information? It’s not a situation of HIPAA, you’re not giving out a patient’s medical information. But it does behoove a practice to have these in place. Many of our clients are also mandating masking and enforcing social distancing so they don’t have to identify those employees who choose not to get vaccinated or who have an exemption.
ME: Do you have any clients who’ve terminated employees over refusal to get vaccinated?
MG: Not as of this time. Because most of our clients are in the health care and life sciences fields many of them do believe in the vaccine and have been vaccinated. I have not been posed with the question about terminating. But I have been dealing with a few practices with similar issues. For example, we represent a radiology group that is a private practice. However, some of their technologists work at the hospital. The hospital system implemented a mandate.
They have asked our client to comply, though they haven’t mandated it. But I foresee this evolving at some point to the potential where there might be a disruption in the relationship between our client and the hospital. Because how do you then say “Okay, radiologists, you’re not our employees but we don’t want to let you in the door?” When the hospital system mandates their own employees to be vaccinated or risk termination how do you allow outside practitioners to come in?
ME: New Jersey, where you are, has a mandate for flu vaccination, correct?
MG: That is correct, and there was recently a challenge to that and it’ s certainly topical because here we are with the COVID vaccine mandate and already we have a lawsuit underway for a flu vaccine mandate. So, it’s not 100% similar but it may give us a preview of what we’re going to be seeing.
ME: Do you think other states will try to copy it?
MG: I think states are looking across the country to see what is sustainable in other jurisdictions. But I think it’s fair to say that different parts of the country have different thought processes and beliefs and regulations in play. In the law we look as much as we can in our own jurisdiction because that’s the best argument to make. This is what New Jersey is implementing, this is what the courts are holding in their decisions.
However, there are situations where it causes the borders. What’s going on in New York or California, and will it eventually become enforceable for courts in New Jersey based on what others are doing. I think the ultimate consideration here is, what is the best way to protect our population, while also enabling commerce and employment and making sure there’s the best balance possible.
ME: Is there anything else medical practice owners should know about vaccine mandates?
MG: Well, again, the concept we encourage our clients to consider is what is best for your practice, what is best for your patients, and how can you go about making the decisions that best minimize liability? A vaccine policy is certainly merited and we believe if done the right way would be something to look back on should there be a lawsuit and be able to say this is what we had in place, this is how we enforced it. You want to make sure you’ve crossed your t’s and dotted your I’s.
There will always be someone challenging something, and if you can look back and say “we tried, we offered an accommodation where possible, and we tried to work it out, but ultimately we have a business and a patient population and other employees that we have to protect as well.’”