“For the Last Time, It’s Not a HIPAA Violation”: HR Base Camp Roundup, Vaccine Edition

State vaccine mandates are rare, but certainly nothing new. In fact, the first state-wide vaccine mandate in the US was enacted in Massachusetts to combat smallpox in 1809. However, as an employer, the responses to vaccine mandates can run the gamut from confusion to frustration. New mandates are usually unaccompanied by not nearly enough guidance as to what to do in specific situations.

So, with not enough to go on, of course, LOTS of business owners and managers are left with important questions. As a result, we at CEDR have been stuck in high gear ever since these mandates started sprinkling in this August. We’ve responded by doubling our efforts to discuss COVID-related issues, launching a series of state-specific webinars exclusively for CEDR members. (In fact, we did eight in one week!) We’ve also monitored our professional online community HR Base Camp more closely, answering questions usually reserved for CEDR members simply because we understand the importance of this issue.

But enough about us, how are you guys doing? This is definitely not the easiest time to be running a healthcare practice, if the HR questions we’re getting lately are any indication. Just be aware that you’re not alone out there, it’s crazy for everyone in the field right now. Read on for our latest edition of Base Camp Roundup, where we discuss what to do with employees who don’t want the vaccine, and how to deal with patients that want to know your team’s vaccination status. Even if you’re not in a state that has any kind of vaccine mandate, it’s still worth a read just to get an idea of what kind of nonsense may be coming down the road.

Remember – It’s not YOUR mandate, it’s the state’s

An office manager in Washington asked:

I have an employee who refuses to get the vaccine– she simply doesn’t want it. Monday, she brought me a stack of papers with stuff about Nuremberg codes and that the mandate here in Washington is unconstitutional. Today, she sent me a link to a site that kept talking about being a “patriot” and seemed to imply employers who follow the mandate can get sued for violating the rights of patriots. Can she do that? I really can’t afford a lawsuit. We are a really small practice. 

The best way to protect your business, and what we are recommending, is to follow all mandates accordingly, keeping records of all necessary documentation your state requires.

The reason we feel comfortable saying this is, if the employee feels their rights have been violated by the state and finds a lawyer who can follow through, the lawsuit should be directed against the state, not your practice for complying with the law. However, not complying with the mandates invites a host of potential legal issues for your practice.

In Washington, employees have to be vaccinated by a certain date to continue working in a healthcare setting. There’s no option to test instead, and the only exceptions for being unable to vaccinate are for medical and religious reasons. 

Political beliefs, no matter how sincerely held, and constitutional arguments, no matter how valid they may sound, don’t fall into the medical or religious exemption categories. Therefore none of this documentation your employee is bringing to you is actually relevant or something you need to respond to. Instead, remind the employee that they have a deadline to show proof of either vaccination or a valid medical or religious reason for not being vaccinated. 

Medical exemptions can be verified with a doctor’s statement. If your employee is seeking a religious exemption, ask for something in writing that explains their sincerely held spiritual belief(s) that disallows them from getting the vaccine. In some cases, you may want to request additional information or verification from their religious leader, but, in other cases, it may be reasonable to simply grant the request. 

Your unvaccinated employee may find a way to get a medical or religious exemption, but, as we mentioned earlier, those two are the only applicable exemptions. For everyone reading, this question comes from a state that mandates firings under certain circumstances when addressing health care workers. If you do have to dismiss this, or any employee, who does not qualify for exemption and declines the vaccination, just make sure you document each dismissal thoroughly.

If you decide to grant the religious exemption or your employee’s doctor attests to a medical exemption, the unvaccinated employee will need to comply with additional health and safety measures in order to continue working. In some cases, the state vaccine mandate has identified what those measures are, in many cases getting regular COVID tests. In others, like Washington, they haven’t set clear parameters and have left it to the employer to decide what the state is going to deem appropriate. 

She doesn’t want it. What now?

From HR Base Camp:

I’m trying to comply with the mandate in Illinois, but I’ve got this employee who just won’t get vaccinated. Where does she file her exemption? Also, am I going to have to start paying for her weekly testing?

The good news is that in Illinois, there’s no need to worry about reasons for not being vaccinated or responding to exemption requests. If employees are not vaccinated, regardless of the reason, they need to get a weekly COVID test. 

However, if the testing option were to go away, or if you were in a state that doesn’t have the testing option, then be aware that those religious and medical exemptions would be coming to you. They’re effectively requesting a workplace accommodation, which is something that you as an employer need to evaluate on an individual basis each time you receive that type of request. One unique twist to this is in D.C., where employees have to notify you of exemption requests, but also have to submit those requests to the Department of Health for review.

Under normal circumstances, both federal law and Illinois state law require that employers who ask their employees to get a medical test must pay for the employee’s time spent testing as well as associated costs. The twist here is that testing is not your requirement, it’s the state’s. The Illinois Department of Health has said they aren’t requiring employers to pay for testing, but it’s very possible that the state Department of Labor will still consider this to be an employment requirement and put those costs on the employer. The safest thing to do is err on the side of existing federal wage and hour law and pay for the cost until the states issue more guidance. 

Tell me now, or I’m telling Facebook!

This question appeared in HR Base Camp:

We keep getting patients calling in and asking if our entire team is vaccinated. One particular patient keeps calling because she is severely immunocompromised and is very worried, which I get. Some of the patients are getting kind of nasty, threatening to put my practice on blast on social media for giving them a “non-answer.” Can I even ask my employees if they’re vaccinated? If they’re all vaccinated, can’t I just tell my patients that as long as the employees are ok with it? 

Countless Base Campers responded to your question with a resounding, “No,” which is correct, but then added, “Because that would be a HIPAA violation.” This is a perfect example of coming up with the right answer for the wrong reason. It wasn’t surprising so many people got it wrong, though. Confusion surrounding this issue is so common, we’ve been addressing it over and over since several prominent politicians, who know better, said they would not answer the question because it is a HIPAA violation.

HIPAA regulates what healthcare practices can and cannot do with their patients’ PHI. Even though you are a healthcare practice, HIPAA does not come into play when it comes to your employees. HIPAA applies to your patient records, not your employee records. 

What does apply to your employees are protections afforded through the Americans with Disabilities Act or the ADA, the FMLA, and other state and federal employment and privacy laws. In short, as an employer, any information you gather or become privy to in regards to your employees’ health must be kept confidential. Not only are you not even permitted to share that information with other managers unless they have a specific reason to know, but you also have to keep this confidential information separate from their regular personnel file. So, while you may be provided certain health information from your employees (for example, collecting and recording your employee’s vaccine status in order to comply with mandates that are in place in some states), to share that confidential information with a patient would constitute a violation of long-standing and existing state and federal law, and you should not do so.

As for the patients who are getting testy, we suggest reminding callers that you are required to protect employee health information just like you are required to protect their personal information. It also might be a good idea to shift the conversation to the measures you are taking to protect their health. Reaffirm that you are complying with all public health infectious disease control recommendations. Ask your employees to focus on the precautions your practice takes to keep patients safe.

Happy Trails, Base Campers!

One thing’s for sure– we at CEDR have probably not seen the last of vaccine-related questions, especially as more and more states put their own mandates in place. In the meantime, in order to protect the anonymity of CEDR and HR Base Camp Members, some of the questions you saw today have been slightly changed or reworded. Remember that, while the responses above were crafted by CEDR Advisors who are HR experts, this blog post is no substitute for legal representation and should not be considered legal advice. This is mainly because the Facebook Group format is limiting in terms of our ability to dive too deeply into specific issues. We simply don’t have the ability to ask the personal and pointed questions about your particular business that are essential to clarifying good HR policies and practices. 

If you are currently experiencing a personnel or HR issue, the best way to empower yourself is to either seek legal counsel or get one-on-one guidance from HR professionals in the Solution Center through a CEDR Membership. Want to learn how membership can work for your practice? Begin today by making a short appointment with a Personal Account Specialist and discuss your particular practice’s HR needs! 

So long, ‘til the next HR Base Camp Roundup!

HR Basecamp, which serves our purpose, was created as a by-product of our stated mission for the year 2020, and aligns with our vision, is the outcome of our strategic planning process. Click here to find out what those are and to learn more about how we used strategic planning to keep it all together in 2020 and 2021. 

Oct 13, 2021

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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