Protecting your practice when employees say no to the shot

By Ali Oromchian, JD, DrBicuspid.com contributing writer

May 11, 2021 -- Many practices are struggling to find the balance between protecting staff and patients against COVID-19 and respecting employees' perspectives on vaccination. There is hesitancy when it comes to the COVID-19 vaccine, and the decision to get vaccinated is highly personal. What can you do, and what should you do, when a member of your team refuses the vaccine?

Managing human resources (HR) issues has never been easy, regardless of industry, and healthcare practices face extra risk. In addition to complying with federal, state, and local employment regulations, you have patient safety and liability risks to consider.

Finding balance when it comes to particularly sensitive subjects like vaccination is tricky. Is it legal to make COVID-19 vaccination mandatory for your employees? If so, is that the right move for your practice? And if you decide to make vaccination mandatory, will you move forward with termination for vaccine refusal?

Balancing risk: New HR questions in a COVID-19 world

There is a lot to consider before creating a COVID-19 vaccination policy for your dental practice. Below you'll find some essential information to help you make an informed decision:

  • There are three COVID-19 vaccines available, including two-shot regiments from Pfizer-BioNTech and Moderna. All three vaccines are available under emergency use authorization by the U.S. Food and Drug Administration (FDA).
  • As of April 10, 2021, 179 million vaccine doses have been administered in the U.S.
  • As of April 16, 2021, nearly 31.5 million cases of COVID-19 have been reported, and 565,000 people have died from the disease in the U.S. -- nearly 3 million have died worldwide.
  • Residents of assisted living facilities and nursing homes were among the first recipients of the vaccine. From December to February, deaths from COVID-19 in those facilities dropped 65%.

Based on these data, many practices have decided to encourage patient-facing employees such as dental hygienists, receptionists, dentists, and dental assistants to get vaccinated. Below I explore three common questions regarding the legality of mandatory vaccination.

1. Is it legal to make COVID-19 vaccination mandatory for your employees?

Making anything health-related mandatory for your employees is risky, no matter what the regulations say. All individuals have the right to make their own medical decisions based on their judgment, preferences, and other relevant factors.

However, it is generally acceptable to require employees to comply with the existing FDA-approved vaccine schedule. Of course, you must make any necessary exceptions for those with medical contraindications or religious objections.

For example, if your dental hygienist practices under one of the faith healing denominations, he or she may not be able to accept vaccinations. From a medical perspective, you may have a dentist who is allergic to an ingredient in one or more of the vaccines and therefore cannot receive them. In these situations, you cannot require the employee to be vaccinated.

2. Is there risk to making COVID-19 vaccination mandatory for your employees?

While there is no regulation that specifically prohibits you from mandating the COVID-19 vaccine for employees right now, it may be unwise to choose that route. The FDA has given three vaccines emergency use authorization, but that does not mean they are approved. Emergency use authorization requirements state that patients must have the option to refuse treatment -- an important point to consider as you develop a policy for your practice.

It is possible -- even likely -- that employees who face termination for vaccine refusal will take their cases to the courts. If their claims are supported, you may be liable for taking employment action against those who refused the vaccine. A better option is to educate your team about the benefits of vaccination and encourage them to get the shot for their own safety and that of your patients. However, if they do refuse, consider alternatives to termination of employment.

3. What should you do if employees refuse the COVID-19 vaccine?

Ali Oromchian, JD.
Ali Oromchian, JD.

If you have team members who cannot or will not get the COVID-19 vaccine, explore solutions that balance their needs with the needs of your practice.

Certain members of your team may be able to work from home -- for example, your insurance administrator or your bookkeeper. Those who can't work from home may be placed on an unpaid leave of absence until the risk has passed. A lot of practice owners have resorted to bringing in a temporary employee to manage the workload in the meantime.

The bottom line is that it's been a stressful year for everyone, and decisions about vaccinations can add to the pressure. Make empathy and compassion your No. 1 priority as you work to keep your team members and your patients safe.

A vaccine policies and declination template is available for download.

Ali Oromchian, JD, is co-founder and CEO of HR for Health, a software-as-a-service platform that provides web-based human resources solutions and advice for healthcare practice owners and managers. Oromchian is also a founding attorney of the Dental & Medical Counsel law firm and a leading legal authority on topics relevant for doctors.

The comments and observations expressed herein do not necessarily reflect the opinions of DrBicuspid.com, nor should they be construed as an endorsement or admonishment of any particular idea, vendor, or organization.


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