Attorney Jeff Drummond, one of the panelists in the Sept. 17 webinar, told attendees that’s not a question that can be answered in an absolute way and outlined some gray areas and situational considerations.
During the presentation, Mr. Drummond fielded a two-pronged question on whether practices should have a policy requiring employee COVID-19 vaccination, and what a practice’s policy should be when disclosing employees’ vaccination status to patients who ask.
To the first part, Mr. Drummond told attendees, “There’s no 100%, yes/no, right answer” on whether practices should require it for their employees. But it’s possible to do so, he said, and there’s a lot of support for letting private employers do it, particularly in a health care setting.
“You have a lot more flexibility to impose [an employee vaccine mandate] in the health care space, because it directly relates to the practice,” added Mr. Drummond, a partner with Jackson Walker LLP.
For instance, it’s easier to impose a vaccination requirement for your practice’s clinicians in the thick of day-to-day patient care, he said. However, if an employee has a legally recognized reason not to get a vaccine – such as a religious exemption or a disability that precludes vaccination – “that may be sufficient” to exempt him or her, and “it’s hard to say definitively whether you can or can’t” impose a requirement. And, if a practice has employees who work entirely from home, or don’t deal with patient care and have a less direct link to health in their job description, “it would be a little harder” to require vaccination.
On the issue of whether practices can divulge employees’ vaccination status upon a patient request, Mr. Drummond says if the practice has a policy in place requiring worker vaccinations, then an employee’s vaccination status is part of that person’s employment record – which is key to allowing disclosure.
“Employment records are not PHI [protected health information], so they’re not protected by HIPAA, even though [they contain] some of the same information,” he said. “So generally speaking, that information would not be PHI if the reason … you have it is because you have a policy to require or not require employees to have a vaccine, or have a requirement that they report whether they have had a vaccine. That makes it an employment record.”
Thus, if a patient is asking about employees’ vaccination status, “you can use the information that relates to what your employment rules are,” Mr. Drummond said.
TMA’s Office of the General Counsel advises you to speak with your own legal counsel to confirm if your practice is eligible to set up an employee vaccine mandate.
Practices can develop and customize policies for their practice using the latest edition of Policies and Procedures: A Guide For Medical Practices. The guide is a direct download from the TMA Education Center and is just $149 for members. By downloading it, you can earn 8 AMA PRA Category 1 Credits™ (enduring) and 8 ethics credits.