It is now mid-summer 2021 and the United States is in yet another surge of COVID-19 infections. Vaccines are now widely available and no longer in short supply. So, should you require your outpatient medical office employees to get a vaccine? First, full disclosure, my very strong personal opinion is, yes. However, there can be mitigating circumstances that can affect the decision about vaccine mandates in certain office practices.
Know your state laws
Tragically, the COVID-19 pandemic has become polarizingly politicized. As a consequence, several conservative states have passed laws prohibiting employee vaccine mandates. A recent report from Becker’s Hospital Review outlined laws affecting vaccine mandates in 11 states including: Arizona, Arkansas, Michigan, Montana, New Hampshire, North Dakota, Ohio, Tennessee, Texas, and Utah. Each state’s law is a little different. For example, Arizona has a provision exempting healthcare institutions; Ohio’s law only applies to public schools and universities and then only applies to vaccines that have not yet received final FDA approval. It is likely that many of these state laws will be challenged in court – for example, here in Ohio, Cleveland State University (a public university) has made a requirement that students be vaccinated, despite the recent Ohio law, thus opening the door for someone to legally contest the university’s policy. However, most small medical practices do not have the time or financial resources to be the test case in their state’s court system contesting vaccine mandate restriction laws. If your practice is in one of these states, then familiarize yourself with the laws affecting your practice.
How vulnerable is your patient population?
A rheumatology or oncology practice that manages a lot of older, immunosuppressed patients is different than a sports medicine practice that primarily manages otherwise healthy, younger patients. Patients who are more likely to become sicker or die should they become infected with COVID-19 need greater protection from unvaccinated office employees. If your practice has a significant number of patients who are over age 60, immunosuppressed, obese, or diabetic, then office employee vaccine mandates become more important.
Is telemedicine an option?
Patients of medical practices are customers of your medical business and customers across the country are increasingly demanding that the businesses that they go to be safe with respect to COVID-19. If your patients perceive that your office is not a safe place, they will not walk in the door. So, if you are not able to vaccinate all of your office staff, look to how you can use telemedicine to cater to those patients who are not comfortable being in a room with unvaccinated staff. Many medical services can be performed just as well by telemedicine as by an in-person office visit, for example, those that are primarily for counseling or data review. Other medical services that require a hands-on physical examination or office-based procedure may not be amenable to telemedicine.
Can you afford to fire an unvaccinated employee?
In a large medical practice with many employees, if one employee refuses to get a mandated COVID-19 vaccine, then it is not a terrible loss to the practice to fire that employee – he or she is dispensable. However, a solo practitioner with a single office nurse who has worked with that practitioner for many years may not be able to fire that nurse for refusing to get vaccinated – the practice’s operations would suffer too much and would likely lose money while recruiting and orienting a new nurse.
You don’t need a mandate if everyone is already vaccinated
By far, the easiest solution is for all of your employees to be vaccinated voluntarily. Everyone who has ever trained a pet dog or a toddler knows that rewarding good behavior is more effective than punishing bad behavior. Mandates can be perceived by some employees as a form of punishment. You are better off listening to your unvaccinated employee’s concerns about the vaccine and then use education and patience to alleviate those concerns. Firing an unvaccinated office employee can also be very expensive when the cost of being short staffed, recruiting a new employee, and training that new employee is figured in. Using monetary incentives or extra vacation time incentives can be cheaper in the long run than hiring a replacement employee.
Vaccine mandates can make your business more competitive
Last week, I walked into a hotel that had a big sign on the front door stating “All of our employees are vaccinated for COVID-19 or wear face masks”. I felt much safer walking through that door and in the future will go to that hotel rather than one where I don’t know if I am safe being around the employees. Once you have all of your employees vaccinated, use that to your competitive advantage by publicizing it. A 70-year old diabetic with a skin rash can go to any dermatologist in town but is more likely to go to a dermatology office that advertises that all of the office staff are vaccinated. It is true that a conservative anti-vaxxer might be miffed at seeing such an advertisement but given that 90% of Americans over age 65 years old have received at least 1 dose of the COVID-19 vaccine, you are going to attract 9 older patients for every 1 who is put off by your employee vaccine mandate. Medicine is a business and with all businesses, success requires you to know your customers. Anti-vaxxers tend to be loud and get the most attention but they are a rather small minority of the population.
What is your legal liability if an unvaccinated infected employee gives a patient COVID-19?
To date, there has been no precedent for personal injury lawsuits if someone acquires COVID-19 at a business. Indeed, some states have laws that prevent people from suing a medical practice or business if they get infected from an exposure at that medical practice or business. However, until relatively recently, vaccines were not available to the entire adult population. Now that COVID-19 vaccines are widely available to any adult in the U.S. and that the U.S. is now giving away tens of millions of doses to other countries because we have a vaccine surplus, legal liability may change. It is possible that in the future, that if your 80-year-old immunosuppressed cancer patient gets COVID from your unvaccinated nurse and then dies, you could potentially face a personal injury or wrongful death suit. In a rapidly changing pandemic, it is not possible to predict the liability ramifications of unvaccinated healthcare workers in the future… it is safest to not take any chances. Some people view vaccine mandates similar to laws requiring people to wear a seatbelt – if you get in an accident, you are not going to be sued for not wearing a seatbelt. With vaccines now available, I see vaccine mandates more similar to laws regarding cell phones and driving – if you get in an accident while you are texting someone, there is a pretty good chance that you are going to get sued.
It is the right thing to do
The list of hospitals mandating employee vaccines is increasing daily. Nationally, organizations such as the Veteran’s Administration and Kaiser Health now require employees to be vaccinated. Here in Central Ohio, all 4 of our hospital systems now mandate COVID-19 vaccines for employees. The Hippocratic Oath that physicians take states: “First, do no harm“. It is morally appropriate to ensure that your patients are not harmed by one of your employees (and that your other employees are not harmed, also). As physicians, we are the ones who are most knowledgeable about vaccines and about COVID-19 so we should be the leaders in advocating for public health safety by requiring our office staff to be vaccinated.
The founder of Jet Blue Airlines, David Neeleman, once said that Jet Blue is a customer service organization that happens to fly airplanes. The same could be said about our medical office practices: we are customer service organizations that provide healthcare. In the midst of a pandemic, our customers want to feel safe in our businesses and it is incumbent on us to be sure that the patients who we serve feel safe in our medical offices.
August 4, 2021