COMMENTARY

When Patients Demand Vaccinated Healthcare Providers

Carolyn Buppert, MSN, JD

Disclosures

July 14, 2021

Carolyn Buppert, MSN, JD

Should a hospital or medical practice fulfill a patient's request to be treated or cared for only by vaccinated healthcare providers?

The answer is yes, in a perfect world. Patients should feel assured that their healthcare providers — clinicians and caregivers — are not exposing them to infectious diseases.

But issues are being raised — subquestions that need to be answered to understand the current situation and assist healthcare employers in their decision-making:

  • Must healthcare employers ensure that their employees are vaccinated?

  • Can healthcare employers require that their employees be vaccinated?

  • Do employees have any rights to refuse vaccination or to refuse to supply their employer with their vaccination status?

  • Can a healthcare employer terminate an employee who refuses vaccination?

  • Does a patient have a legal right to a vaccinated healthcare provider?

At present, federal policy says that employers may, but are not required to, insist that employees be vaccinated. The currently prevailing state case law says that hospitals and other employers can require staff to be vaccinated and can terminate employees who refuse vaccination. In June, a Texas court dismissed a case in which 117 employees sued a hospital for requiring that employees be vaccinated. More cases are pending in other states, and there may be differing decisions in other states and on appeal.

State laws enacted years ago also weigh in on employer obligations. In at least one state, Oregon, employers of healthcare providers may not require vaccination, even though other employers may. Other states have laws about what an employer may or may not require of an employee regarding vaccination, and some have introduced laws which are pending.

So, in most states, healthcare employers may, but not must, require that employees be vaccinated. In most states, hospitals and medical practices may terminate employees who refuse vaccination. However, employers should research the laws of their own states before requiring vaccinations and before terminating employees who are not vaccinated.

The issue of employer mandates is complicated further by the practicality that, in some areas of the country, healthcare providers are in scarce supply. Employers don't want to lose the providers they have.

And there are additional questions about how certain federal laws affect the situation. Federal law that may apply includes:

  • US Food and Drug Administration (FDA) regulation on approval of vaccines

  • The Americans With Disabilities Act (ADA)

  • The Health Insurance Portability and Accountability Act of 1996 (HIPAA), which protects sensitive patient health information from being disclosed without the patient's consent

  • Civil rights laws

  • Patients' rights

FDA. Some healthcare providers who refuse vaccination argue that employers have no legal right to require a vaccine that is not fully approved by the FDA. COVID-19 vaccinations have emergency use authorization — something less than full approval. Courts have not yet ruled on this issue.

ADA. Some attorneys believe that honoring a patient's request to be attended only by a vaccinated healthcare provider can implicate the ADA. However, the ADA doesn't protect healthy individuals who don't want to be vaccinated. The ADA protects the person who, because of their disability, shouldn't get the vaccination. If an employer mandates vaccination, the employer must, under the ADA, consider requests for exemptions from disabled individuals. However, even when an employee has a disability that may qualify the employee for an exemption to the vaccination requirement, an employer may argue that giving an exemption would be a direct threat to the safety of others; in that case, the ADA may require that the disabled employee and hospital work something out. A compromise might be that the unvaccinated disabled individual would not provide direct patient care or would wear a mask and maintain physical distance.

HIPAA. Some argue that federal privacy law enters into the discussion, maintaining that healthcare employers can't disclose employees' vaccination status under HIPAA. That is not true. Employers are not "covered entities" under HIPAA. It is healthcare providers who are precluded under HIPAA from disclosing a patient's personal information. So, if an employer were to ask an employee's healthcare provider about the employee's vaccination status, the healthcare provider could disclose that status only if the employee consented to the disclosure. An employer may ask an employee for the employee's proof of vaccination card. However, employers must not ask for unnecessary details that might reveal disability information protected by the ADA.

Civil rights law. Civil rights laws may protect certain individuals from employment consequences of refusing vaccination. Specifically, individuals with sincerely held religious convictions against vaccinations are protected from retaliation by employers for refusing vaccination, under the Constitutional right of freedom of religion. The individual without sincerely held religious convictions against vaccinations and without a relevant disability doesn't have legal remedies under civil rights laws.

Civil rights laws may apply if employers don't apply their vaccination requirements to all employees equally. That is, employers can't require vaccinations of some employees but not others.

Patients' rights. Legal protections for patients who want a vaccinated healthcare provider are nowhere to be seen, at this time. It is unlikely that a single patient will be able to convince a hospital or medical practice to require that its staff be vaccinated. However, if a patient becomes infected with COVID-19 and can prove that the illness is causally related to interacting with an unvaccinated healthcare worker, the patient may have a case against the employer. The legal theory would be malpractice or negligence under informed consent law: that is, the patient did not consent to be treated by an unvaccinated person.

Employer Options

So, what can healthcare employers do? They have three options:

  1. Require vaccination of all employees, independent contractors, and other providers who have privileges to see patients. Then, as long as the employer enforces the vaccination mandate, the employer can tell patients that all providers are vaccinated.

  2. Not require that employees and others with access to patients be vaccinated, and if a patient requests to be seen only by vaccinated providers, provide that patient with a vaccinated provider. It is especially important that healthcare employers take care with patients who are unvaccinated and who have been advised not to be vaccinated because of a medical condition. Both the patient and the healthcare employer would be protected best by avoiding having two unvaccinated individuals interact. Masks and physical distancing may decrease the risk.

  3. Not require that employees be vaccinated and refuse to guarantee that providers are vaccinated. To avoid risk for future lawsuits, employers should inform patients that there is no assurance that providers are vaccinated. That leaves it to each patient to ask individual providers about the provider's vaccination status. If a patient doesn't like a provider's answer, then the patient has the right to leave. It's not clear that the patient has a legal right to stay and demand a vaccinated provider.

Option 3 is problematic for a number of reasons. Patients aren't always in a position to query each provider who enters the room about vaccination status. Patients may be sedated or too ill to exert that effort. And it puts supervisors in the position of having to mediate situations where a patient wants to leave against medical advice but the option of staying also may be dangerous.

Healthcare employers should discuss the options with their legal counsel before making deciding which option to adopt.

Carolyn Buppert (www.buppert.com) is an attorney and former nurse practitioner who focuses on the legal issues affecting nurse practitioners.

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