Credentialing & Privileging: COVID-19 Vaccine Requirement?

When consulting with health centers about their HRSA-compliant credentialing and privileging policies (HRSA Site Visit Protocol, Chapter 5: Clinical Staffing), I have frequently been asked the question over the past six months: “Can we require our staff to receive the COVID-19 vaccine?”

Though HRSA is not prescriptive on what vaccines are required for health center employment, the HRSA Compliance Manual clearly states that it is up to the health center to determine which immunizations and communicable disease verifications are required upon hire and on a recurring basis. The HRSA Compliance Manual does note that, “The CDC has published recommendations and many states have their own recommendations or standards for provider immunization and communicable disease screening. For more information about CDC recommendations, see http://www.cdc.gov/vaccines/adults/rec-vac/hcw.html.”

However, there was no guidance specifically on how a health center should (or could) respond in regard to discussions of COVID-19 requirements. But on May 28, 2021, the U.S. Equal Employment Opportunity Commission updated their technical assistance questions and answers entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”.

The EEOC answers the question about vaccine requirements this way:

“The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer. In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)). Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement. It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.”

So when considering whether your health center will require employees to receive the COVID-19 vaccine, the EEOC has given the “yellow light”: Carefully consider the ramifications of the requirement, consult legal counsel, and proceed carefully and thoughtfully.

If your health center would like to consult the RegLantern team as you are revising your HRSA-compliant Credentialing and Privileging Policy, contact us today!