This resource addresses federal law; state legislatures and state regulatory bodies may issue or enact laws, rules, directives, etc. that limit what your organization can do. It is recommended you have written policies reviewed by legal counsel prior to implementation.
EMPLOYEE-RELATED QUESTIONS & ANSWERS
Can senior living communities mandate employees be vaccinated for COVID-19?
Yes, with exceptions. Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA)1 provide for exemptions from mandatory vaccination and require reasonable accommodations for employees with disabilities (including any medical contraindication for the vaccine) or religious objections. Employee requests for medical exemptions should be treated like any other ADA request for accommodation. State laws may require additional steps.
The ADA allows employers to have safety-based qualification standards for employees, such as requiring vaccinations where an unvaccinated employee presents a “significant risk of substantial harm to the health or safety of an individual or others that cannot be eliminated or reduced by a reasonable accommodation.” 29 C.F.R. 1630.2(r).
NOTES:
- On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to address the release of the COVID-19 vaccine and provide direction to employers for determining if their employees may be required to be vaccinated: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov).
- The Occupational Safety and Health Administration (OSHA) has not issued guidance on mandatory COVID-19 vaccination; however, it has provided guidance indicating a private employer may make H1N1 flu vaccines mandatory, so long as the employer makes appropriate religious and medical exceptions.
- Some hospitals and long-term care providers have opted for voluntary vaccination programs involving educating employees on the risks and benefits of vaccination in lieu of making vaccination mandatory.
- Consider hiring a third party to provide on-site COVID-19 vaccinations.
- It is recommended for employee vaccination to occur on-site; if employers mandate vaccination at an off-site location, hourly employees must be paid for their time consistent with the Fair Labor Standards Act.
What strategies can be used for encouraging employees to voluntarily be vaccinated for COVID-19?
Consider offering incentives for employees to get the vaccine. For example, you could provide all employees an additional day of paid time off once your organization reaches a certain vaccination goal.
Cover employee-based costs, if any, for vaccination and provide paid time off for any employee who misses work due to side effects from the vaccine.
NOTES:
- Work with legal counsel (see below for law firm) to ensure any incentive complies with EEOC regulations and does not serve to identify, stigmatize or discriminate against employees based on disability or religion.
Should Senior Living communities have written policies regarding COVID-19 vaccination for employees, residents and contractors/vendors?
Yes. It is recommended senior living communities, at a minimum, review CDC recommendations regarding vaccination; consult with state or local health care departments; consult with providers experienced in infection control; consider issues such as staffing levels and the presence of union employees (if any); and perform an assessment based upon the risks of COVID-19 infection for its staff and residents.
If I have a vaccination policy, should it include how exceptions or exemptions from any vaccine requirement will be addressed?
Yes. It is recommended a COVID-19 vaccination policy include a process for addressing any medical contraindications or requests for accommodation due to religious beliefs.
Should I require employees to sign a consent and waiver of liability when accepting or receiving the COVID-19 vaccine at work?
Yes. A consent and waiver of liability is recommended to assist Senior Living communities with managing potential legal liability for any side effects of the COVID-19 vaccine. The waiver of liability might also include helpful tools such as an agreement to arbitrate any legal disputes arising out of or related to receiving or refusing the COVID-19 vaccine. A refusal of the vaccine can be included within the same waiver of liability. It is recommended the waiver briefly address the risks and benefits of the COVID-19 vaccine.
Contact the law firm of Fudge Broadwater at dfudge@fudgebroadwater.com if you desire further assistance with drafting a Consent and Waiver of Liability form that meets your state’s laws.
If an employee is negatively affected by the COVID-19 vaccine, shouldn’t the claim be covered by Workers’ Compensation insurance?
Maybe; it depends upon state law. The most comparable claims are those in which healthcare workers have been negatively impacted by receiving the flu vaccine. These claims have been determined as compensable in multiple states.
When may I ask prospective employees if they have had COVID-19 or the COVID-19 vaccine?
The ADA permits employers to make limited medical inquiries after a conditional offer of employment has been made provided that all entering employees in the same job category are also subject to the same inquiries.
May I ask existing employees if they have had COVID-19 or the COVID-19 vaccine?
Yes. Senior living communities are permitted to make medical related inquiries if the inquiries are job related and consistent with business necessity based upon objective evidence an employee’s essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition. However, an employer cannot exclude an employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat to health and safety.
If an employee has already had COVID-19, should I still offer or require vaccination?
Yes. Many health experts are recommending COVID-19 vaccination even for people who have already tested positive for COVID-19.
What do I do if an employee or prospective employee refuses vaccination and states the refusal is because of medical reasons or a medical contraindication?
Under the ADA, employers are required to engage in the “interactive process” and attempt to reach a “reasonable accommodation” which does not impose an “undue hardship” on the employee. The interactive process may include requiring the employee to provide documentation from his/her health care providers to support any medical contraindications. Reasonable accommodations may include allowing an employee whose work may be done off-site to telecommute. Requiring an employee who is not vaccinated to remain in Personal Protective Equipment (“PPE”) at all times while in the workplace might not be a reasonable accommodation in a senior living community if there are unvaccinated residents as PPE only helps minimize, and does not eliminate, the risk of spreading COVID-19. Reasonable accommodations should be assessed on a case-by-case basis. It is always advisable to make a contemporaneous written record of discussions with the employee regarding reasonable accommodations. If you require an employee to submit supporting documentation from a health care provider, provide the request to the employee in writing and provide a reasonable deadline for the employee to provide the documentation.
What do I do if an employee or prospective employee refuses vaccination and states it is because of religious beliefs?
Under Title VII, employers are required to provide a “reasonable accommodation” for sincerely held religious beliefs. Compared to medical exemptions, employees may establish the “sincerity” of their beliefs with little documentation, but the reasonable accommodations under Title VII only need to be provided if they would impose a “de minimis” burden on an employer.
RESIDENT-RELATED QUESTIONS & ANSWERS
Can senior living communities mandate residents be vaccinated for COVID-19?
No. Residents/patients of senior living communities have the right to refuse medication and treatment. Medical contraindications or religious beliefs are also reasons residents may refuse vaccination. This is the same as the resident’s right to refuse the flu vaccine.
Can a senior living community involuntarily transfer and discharge a resident who refuses to be vaccinated?
Maybe. 42 CFR § 483.15(c)(1)(i)(D) permits skilled nursing facilities to transfer and discharge a resident if “the health of individuals in the facility would otherwise be endangered.”
Assisted living facilities’ rights to transfer or discharge a resident vary by state law and by contract. Independent living facility rights are typically governed by contract.
Note: For skilled nursing facilities, the clinical charting requirements supporting an involuntary transfer or discharge vary by state.
In lieu of discharge, what other strategy may be used for a resident who refuses to be vaccinated for COVID-19?
An unvaccinated resident may be placed on transmission-based precautions which may include isolation or restriction to limited areas within the facility where appropriate.
What documentation strategy should I follow for COVID-19 vaccinations of residents?
It is recommended skilled nursing facilities follow documentation policies the same or similar to those contained in 42 CFR § 483.80(d)(2). Be certain your policies and procedures ensure that: (1) before offering the immunization, each resident or resident representative receives education on benefits and potential side effects of immunization; (2) each resident is offered immunization unless immunization is contraindicated or the resident has already been immunized; (3) the resident or resident representative has the opportunity to refuse immunization; (4) documentation in the medical chart indicates education was offered to the resident or resident representative, and the resident either received immunization or did not receive immunization due to a medical contraindication.
THIRD PARTY-RELATED QUESTIONS & ANSWERS
Can senior living communities require third party contractors or vendors be immunized prior to providing services in their facility?
Yes, senior living communities may require employees of its vendors such as therapy providers, medical directors, hospice personnel and others be vaccinated prior to entering the facility.
Can senior living communities require visitors or individuals hired by residents (such as private duty caregivers) to be vaccinated prior to entering a facility?
Skilled nursing facilities may refuse visitors where warranted by CDC guidance with regard to each skilled nursing facility’s reopening status. It is possible skilled nursing facilities may preclude visitors who have not been vaccinated based upon clinical necessity or for the safety of individuals in the facility (employee, residents and third parties) pursuant to 42 CFR § 483.10(f)(4)(vi).
Assisted living facilities and independent living facilities may refuse visitors where permitted by state or local laws or as provided for in their contracts with their residents.
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This document was prepared with the assistance of Donna Fudge, Esq. and Bill Edwards, Esq., CHC. Ms. Fudge has over 25 years of experience representing long-term care facilities throughout the Country; Mr. Edwards is certified in Healthcare Compliance and has over 18 years of long-term care experience. Contact the law firm of Fudge Broadwater at dfudge@fudgebroadwater.com for legal assistance in addressing your company’s COVID-19 concerns.
