Managing Unvaccinated Staff

Background

In California the COVID-19 vaccination rate among surveyed dentists was 94% as of June 2021, which is significantly higher than other adults’ vaccination rates. California law now requires that health care workers show proof of COVID-19 vaccination or submit to weekly testing. Much concern and confusion exists regarding dentists’ responsibilities as employers with respect to unvaccinated staff. The issue also involves the dental practice employees’ rights. Specific areas were clarified for dental practices.

Requirement to Be Vaccinated

In California, employees and new hires can be required to get vaccinated as long as the employer doesn’t violate the Fair Employment and Housing Act. This may vary from state to state. The California order requires health care workers to show proof of COVID-19 vaccination or submit to weekly testing. Employers can urge employees to receive the vaccine by building vaccine confidence and facilitating vaccination. If employers choose to require vaccination, they must consider the ramifications of potential vaccine complications or side effects, reasonable accommodation for medical conditions (including pregnancy), and sincerely held religious exceptions.

Exposure to Legal Risks

Employers will be required to make individualized assessments of each unvaccinated employee’s ability to safely perform all essential job functions, which may include certification from a health care provider. Despite a vaccination policy that qualifies as a legitimate health and safety requirement, some employees can be exempt.

Potential new hires can only be asked vaccination questions that pertain to the individual’s job. If the employer doesn’t require employees to be vaccinated, no question on vaccine status should be asked during a job interview.

Proof of Vaccination

Employers can ask for proof of vaccination based on an order requiring employers of health care workers to verify that their workers are fully vaccinated against COVID-19. Those who aren’t fully vaccinated will be required to undergo weekly testing and must wear surgical masks at a minimum. This is based on the Equal Employment Opportunity Commission’s determination that asking for proof of vaccination is not a disability-related inquiry. Employers can only ask to see a vaccination record card; additional information should not be requested. Asking the reason for not being vaccinated could trigger disability-related protections under the federal Americans with Disabilities Act.

Termination for Refusing Vaccination

Options are available to accommodate unvaccinated employees, as already stated. California state regulations require all health care workers to wear face masks regardless of their vaccination status. If the employer still feels strongly about requiring employees to be vaccinated, he or she should consult an employment law attorney before instating a mandatory policy.

In the case of a known disability or sincerely held religious belief or practice that prevents a person from being vaccinated, the Fair Employment and Housing Act requires employers to make reasonable accommodations and prohibits them from retaliation measures against the employee. It’s highly likely that an employee who experiences negative employment consequences for refusing COVID-19 vaccination could pursue a discrimination claim.

Patients’ and Staff’s Rights Regarding Vaccination

Employers are prohibited by state and federal privacy laws from sharing employees’ private health information. They are also required to maintain COVID-19 vaccine documentation or status confirmation along with other medical or accommodation documents in a confidential manner and stored separately from personnel files. Access is limited to those with a legitimate need to know.

Vaccine status should not be shared. Although practice leaders should encourage vaccination for staff members and support their decision, they should never allow employees to be pressured by other staff or by patients to disclose confidential information. Employers are advised to proactively establish and share office guidelines with staff on how they should handle patients’ inquiries about vaccination status so that the messaging is consistent, well-considered, and respectful of staff privacy.

Employers are not required to accommodate patients who request that they only be treated by vaccinated staff. This falls under the protection of private medical information. Patients can be reassured that the dental office complies with all required infection control protocols and employs proper practices to ensure the patient’s ongoing safety. Among the measures that can be pointed out are personal protective equipment (PPE) protocols, staggering appointments, and adhering to the guidelines set forth by California, the federal Occupational Safety and Health Administration (OSHA), and the Centers for Disease Control and Prevention (CDC).

Clinical Significance.

Employers must balance the legal and ethical obligations to protect everyone with employees’ emotional involvement and patients’ expectations. It can be challenging to do this, but dentists should focus on protecting patients, team members, and the practice when making decisions regarding vaccination against COVID-19.