Mandating COVID-19 Vaccination Implications to consider before making the decision BY ROBERT KURTZ

W ondering whether you are allowed to mandate that your

staff receive the COVID-19 vaccina- tion? The short answer is yes, you can, says Marianne Monroy, partner-direc- tor and co-chair of Garfunkel Wild's employment law practice group who practices out of the firm's Great Neck, New York, office and serves the tri- state area of New York, New Jersey and Connecticut. A lot needs to be con- sidered before proceeding, however. “The Equal Employment Opportu- nity Commission indicates that there is no prohibition per se on mandat- ing a vaccination assuming there is a legitimate business need—and ASCs can make such a claim,” Monroy says. “However, clients that tell us they want to issue a mandate do not always fully appreciate the implications that would go along with it.” For example, those who adopt a mandate are required to develop a policy concerning the mandate, Monroy says, and that policy needs to address several issues. “The policy must make reasonable accommodations for dis- abilities and religious exemptions. It must also address who is and is not required to receive the vaccine. Will it be mandated for all staff or only those patient-facing team members?” For facilities that proceed with a mandate, appropriate enforcement becomes essential. “You must be con- sistent about mandating it,” Mon- roy says. “For example, you cannot show preference and choose to allow ‘superstar’

staff members off the

hook. If you let some staff members ignore the policy, you can face dis- crimination claims.”

There are logistical and practical

matters ASCs need to address as well, Monroy says. One of the most impor- tant is who will administer the vaccine. “If you do it on site and have supervisors

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performing screenings and vaccina- tions, this can lead to leadership getting protected health information, which is potentially problematic. For example, a manager screening or vaccinating staff could find out that an employee is preg- nant. If that pregnant employee is fired soon after the manager discovered her pregnancy, it could raise a potential dis- crimination claim. “Ideally,” Monroy adds, “you will have an outside third party handle the vaccination. This will prevent health screening information from being shared directly with the employer.” Then there is the potential fallout from a mandate. “You could lose tal- ent,” Monroy says. “Some people are not going to get the vaccine because of moral or philosophical reasons. That is a big consideration and one of the reasons why many of our clients are proceeding with a voluntary vaccination program.” Physicians Surgery Center in Jack-

son, Tennessee, has a voluntary pro- gram in place. The ASC approached the COVID-19 vaccination like it does all vaccinations, says Rex Hack- ney, RN, CASC, the center's clinical director. “It is not mandatory, but it is highly suggested.”

When Physicians Surgery Cen- ter learned when and which vaccine would be available to staff, education became a priority, Hackney says. “We posted flyers with details on what staff should expect after getting the vaccine and shared reports on the number of people the vaccine was tested on.” Those flyers and reports, and other information,

Hackney says, likely

helped motivate 30 of the ASC's 65 staff members to receive the vaccine in January at a local hospital. Since then, a few more team members have received or indicated that they plan to receive the vaccine. “We would love to have 80 percent of employees get it, but that may be difficult as many who have refused are quite adamant about it. Hopefully, some more will come around in the coming months.” ASCs looking to motivate staff on the vaccination fence can offer incen- tives, Monroy says. These can include gift cards and paid time off, but per- haps the most effective motivator will be management setting an example. “If leadership gets the vaccine and speaks about its importance, this can help reduce the probability that staff will opt out.”

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