Staff Health and Safety Updates: Revisiting Requirements

With recently updated CDC guidance on masking (the body now says most vaccinated Americans don’t need to wear masks in most settings in a significant portion of the US), and ongoing developments related to vaccination, medical practices may be unsure how and when they can require masking and vaccination of staff or patients.

Joshua F. Alloy, JD, Counsel at Arnold and Porter in Washington, DC, weighs in. He notes that, if there is any uncertainty, questions should be brought to the attention of legal counsel to insure compliance with all relevant local, state and federal regulation and avoid missteps.

Staff (and patients) may argue that mask mandates in a practice “violate” CDC guidance. How should practices respond?

Joshua F. Alloy, JD: It’s impossible to “violate” the CDC guidance, as the guidance is non-binding and intended as a minimum “best practice” for businesses to follow. However, when dealing with staff and/or patients, practice administrators typically do well to share a non-argumentative, reasoned response to any objections, aimed at encouraging compliance. In terms of staff, employers must consider and adhere to the city, state, or federal mandates or requirements and rules that all or certain employers must follow. While OSHA’s rules were recently overturned by the Supreme Court and therefore are no longer in effect, certain cities, like New York City, have a vaccine mandate still in place for most private employers (other than professional sports teams). HHS and CMS also have requirements in place, including a vaccine mandate, that cover certain Medicare and Medicaid certified providers and facilities.

Essentially, when there is guidance or a recommendation in place, it puts the responsibility on the employer—in this case the practice—to come up with whatever set of health and safety standards and rules and regulations that they want to impose in the workplace, keeping in mind that the guidance is a minimum baseline. A practice is not required by law to follow the recommendations, and can go beyond them. Private employers have long been and still are free to put in place vaccine requirements, mask requirements, and any other health and safety practices that they would like with relatively limited exception, as long as those employers provide reasonable accommodations based on disability and religious belief. Failure to put in place adequate health and safety measures, however, could expose an employer to later claims of negligence.

Just like private employers can put health and safety requirements in place—they can require that employees wear socks and shoes in the office or wear masks, both are perfectly legal, by the way—building owners can put in place requirements that its tenants must follow. If the tenants don’t adhere to the requirement, they may be in violation of the lease or occupany agreement. Thus, a building may put in place masking or even vaccination requirements for any visitor into the building, and a practice that leases space there will have to follow those requirements, as well.

When challenged on requirements, the best approach typically is not to be confrontational or rude. If the building owner is the one imposing the requirement, the conversation may be a bit easier, as the practice can simply point to that fact: “As a tenant in this building, we’re required to follow certain rules and regulations that the owner of the building puts in place.”

If the practice has decided to put in place a masking requirement or proof of vaccination for everyone in the office, they should stand behind their policy. For example, in response to questions from patients, a practice could say: “We recognize that the CDC guidance, which is subject to change, currently does not require masking (or vaccination, etc.). However we have, as a healthcare provider, taken the added safety precaution to protect our patients and our staff of requiring masks (or proof of vaccination).” A lot of private employers, venues, restaurants, etc., still require proof of vaccination. It’s a business-by-business decision at this stage of the pandemic.

I reiterate the caveat I noted earlier: Some localities may have additional health orders in place. Those obviously can change from day-to-day and week-to-week, but employers must adhere to these.

Over the past year, have there been any developments that practice administrators should be aware of as they’re enacting or enforcing vaccine mandates for employees?

Mr. Alloy: Assuming that the practice voluntarily has decided to implement a proof of vaccination requirement—as opposed to one that it is required to impose due to federal or state law—the practice likely knows full well that there may be certain staff or patients who won’t get vaccinated, and it is prepared to not have that person continue either as a patient or a staff member. They have by this stage, hopefully also decided how aggressively or not they plan to grant medical or religious exemptions, within the contours of applicable law.

The issue of medical and religious exemptions in a typical office is a different calculus than in a healthcare setting. In a typical office environment, there may be accommodations that can allow someone to continue as an employee—either working remotely or in their own private office space—that just don’t exist in a healthcare setting. You most likely can’t practice medicine purely remotely, and most employees need to interact face-to-face with patients. There’s some increased flexibility for employers in healthcare to be able to say there is no reasonable accommodation that can be provided to allow an unvaccinated employee to keep doing their job safely, even if the employee has a valid religious or medical reason why they can’t get vaccinated.

That said, all employers that have a vaccine mandate need to carefully review and analyze requests for medical and religious exemptions. For example, there has been some narrowing in the CDC guidance and other government guidance of what constitutes a valid medical reason why someone can’t get a COVID vaccine. And we are seeing increased litigation over the denial of requests for religious exemptions from vaccination.

There is no one-size-fits-all approach for employers; I strongly recommend that they seek legal advice and guidance in connection with reviewing and either granting or rejecting any request for a religious exemption.

When a practice does receive a request for a religious exemption, it is well within its rights to push for an explanation and an understanding of how a person’s religious beliefs or practices prevent them from getting the COVID vaccine so that the employer can evaluate whether the stated rationale is really based on personal religious beliefs or is based on some other reason, such as a medical or political reason. An opposition to mandates is not a valid religious objection. However, the law does not require that the person base their religious views on some sort of recognized standard or major religion. It can be based on their personal beliefs, as long as it’s spiritual or religious in nature, even if it’s not common to a recognized branch of a major religion.

State laws may allow broader exemptions. Texas and Florida, for example, have put in place their own laws to try to prevent vaccine mandates or to allow exceedingly broad exemption rights to employees. This highlights the need to seek legal counsel to understand what regulations affect your practice in your locale and then move forward.

Should employers keep anything else in mind?

Mr. Alloy: Given what’s happened the last two years and the uncertainty going forward, employers should expect that there will be additional changes to the guidance over the next six months, especially in terms of what’s being required in their locality or at the federal level, including masking and vaccination.

No matter what direction a practice takes in terms of its requirements, every practice needs to put in place written policies and practices, both for the staff and outward facing for patients. Patients should know or be able to read the policies of the practice ahead of time. And any policy should make clear that it’s subject to change or amendment at any time.