Landscape for vaccine mandates becoming clearer


BOSTON (SHNS/WWLP) – Health care employers pursuing COVID-19 vaccine mandates for their staff do so amid a “supportive landscape” for such policies, a labor and employment lawyer told the Massachusetts Health and Hospital Association Thursday.

Kristin McGurn, a partner in Seyfarth Shaw’s Boston office and co-chair of the firm’s interdepartmental health law group, said during an MHA webinar the logistics of putting such mandates in place can present a challenge for employers as they begin to field requests for religious and medical exemptions.

She said because the Department of Justice and Equal Employment Opportunity Commission have both “said mandatory vaccination programs are fine,” and because some objections to mandates are expected to wane now that the Pfizer vaccines have full U.S. Food and Drug Administration approval, “the landscape for what you’re trying to accomplish is welcoming and really began centuries ago with the smallpox vaccine.”

MHA’s board of trustees has approved a policy statement endorsing mandatory vaccination for every health system and hospital employee. Individual hospitals and health systems have been establishing policies for their own workforces — for instance, Mass General Brigham, the state’s largest health care system, announced in June that it would require its 80,000 employees to be vaccinated once the FDA approved one of the three COVID-19 vaccines used in the U.S.

Valerie Fleishman, the MHA’s senior vice president and chief innovation officer, said many of the association’s member organizations have set deadlines of October and November for their vaccine mandates.

Some state entities are also aiming for October dates in their employee vaccination policies, including the Senate, the Gaming Commission, and the state’s executive branch offices and agencies, where the mandate was set through an order from Gov. Charlie Baker.

The Baker administration is also requiring that long-term care workers in Massachusetts be fully vaccinated by Oct. 10.

McGurn advised MHA members to “stay tuned” to see how Baker’s state worker and nursing home mandates play out.

“But we think that that reflects an appetite in the state of Massachusetts for mandating vaccines, particularly among health care workers,” she said.

Considerations for employers thinking about requiring vaccination include whether to opt for a “hard” mandate or a “soft” one that offers testing as an alternative, along with whether it would apply to patient-facing staff only or all workers, McGurn said. She said employers must also think about labor relations, how staff would prove their vaccination status and how to protect that information.

McGurn and another Seyfarth attorney, Daniel Klein, said requests for medical and religious accommodations and exemptions from the mandate need to be considered on an individualized basis, using facts specific to the particular employee.

Klein said most traditional religions “have no issue or objections to the vaccine as a whole.”

“However, you cannot deny a religious accommodation request based purely on the general stance that that particular person’s religion takes. It’s still individualized,” he said. “So while Christianity, for example, does not oppose the vaccine, and no denominations within it other than Christian Science have any particular issues, an employee — and we’ve already seen this — may say that their particular beliefs within Christianity cause them to have a conflict.”

The standard for religious accommodations is that the employee has a “sincerely held religious belief.” Klein said employers are allowed to ask questions and collect information to assess exemption requests in keeping with that standard.

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