Q&A – COVID-19 Vaccine Mandates

My office accepts Medicaid. Does the Federal mandate apply to me?

It may. Guidance from the Centers for Medicare & Medicaid Services is developing a final rule that will provide clarification on who is covered.

What gives the Federal Government or a state the right to mandate vaccines?

Vaccine mandates are not new. The US Supreme Court ruled in 1905 that the states’ general police power to promote public health and safety includes mandating vaccines.

All 50 states and the District of Columbia have laws requiring student and other vaccinations. The severity of COVID-19 bolsters states’ legal ability to mandate vaccinations.

Who is covered under the Federal mandate?

Federal employers and Federal contractors and subcontractors
Private employers with 100 or more employees
Health care employers
“Other employers”

If I mandate the vaccine and an employee gets sick, is it covered by workers' compensation?

If a worker has a reaction that is serious enough they are unable to work for a few days or longer, they may be entitled to workers’ compensation benefits.

In California, do I have to buy the test and test employees myself?

You are not required to. You can provide at-home tests (assuming they meet the state testing requirements); you can require employees to test at a clinic or obtain the tests themselves. If they obtain tests themselves, remember in some states there is a question of who pays for the actual test. Time for testing generally has to be paid by the employer.

If a patient asks if they will be seen by a vaccinated employee, what can I say?

You should not say which employee is vaccinated and which is not. You could say our whole staff is vaccinated (if true) or we are in compliance with the state mandate or something similar.

Do I need to keep proof of vaccination copies for contractors and employees?

Under most state mandates, personal attestation is not allowed. You must see proof of the vaccination and keep records of the same. You must also provide the records upon request by governing authorities.

In WA, there is an option to elect to require employers of contractors to assume responsibility for vaccination verification and accommodation requests.

What if I don’t comply with the mandate? What liability do I have?

You could be issued a warning, fined, or ordered to cease business. State and local governments have the power to shut down businesses for failing to comply.

There are several lawsuits around state and federal mandates. Do we wait until those are resolved to take any action?

No – the mandates are in place and must be followed until a decision is made to the contrary by the applicable authority.

How do the mandates impact people who are fully remote?

We are still waiting for guidance on the federal mandate to see how it will apply for fully remote workers. State mandates apply only to those working in person in the healthcare setting.

Does a medical or religious exemption require testing in Washington or Oregon?

You would need to take reasonable steps to ensure the person is working safely in the healthcare setting – weekly testing is a good option along with masks.

What if someone doesn’t feel safe working with someone who is unvaccinated because of a health condition or family member's health?

Employers can and should put into place social distancing and other safeguards for employees with health conditions or family members with health conditions that create greater risk.

Are test results/vaccine status considered medical information? Isn’t that private information?

Vaccination status is confidential, but employers are allowed to ask, given the health risks associated with COVID-19. They need to treat the information as confidential after they receive it.

Do employees have to complete COVID-19 testing off the clock, or are they paid for their time?

Generally, if an employee is required to be tested as part of the job, they have to be paid for their time to be tested.

Can a dentist fire someone for not getting a vaccine? If so, can the dentist be sued? Does the person receive unemployment?

A dentist can fire someone for refusing to receive a vaccine, especially if there is a mandate in place. Even without a mandate, the EEOC has made it clear that employers can fire people for refusing to be vaccinated. The exception is Montana, where the state passed a law to the contrary. It’s unclear whether someone who is fired for refusing to be vaccinated will receive unemployment at this time but it looks as if they will not.

How likely do you think enforcement will be for all of this?

That depends upon what happens with COVID-19 numbers, hospitalizations, and deaths. If more people sicken and die, enforcement will skyrocket, and you’ll see broader vaccine mandates. If things improve, you may see enforcement ease up, and the order will go away.

Can a dentist give exemptions to their whole office?

Absolutely not. The exemptions have to be based upon a doctor’s certification or a good faith religious belief. A doctor who approves requests for exemptions that do not appear to be in good faith or valid will likely be cited by state authorities.

Do you think states that say you can’t have vaccine mandates will change?

This is hard to say. If COVID-19 numbers start going way up in those states, they may change their approach. It has become a politically divisive issue that complicates matters. There are also legal challenges to the state positions taking place that may impact the approach.

Can a dentist use this on someone’s performance review?

It is more likely dentists will either make vaccination a requirement of the job or not. Some employers may tie healthcare premium increases to vaccination status.

Can I make vaccination a condition of employment for new hires?

Yes. If vaccination is required to do the job, you can include in the job posting that someone must be fully vaccinated or qualify for a religious or medical exemption as a condition of being hired.

Didn’t Washington State Dental Association object to Gov. Inslee’s mandate – what happened with that?

Yes, but we don’t think this is going to change anyone’s mind. Certain healthcare industries are having labor shortages, and employers in those industries are worried vaccine mandates will scare employees. But many states believe a mandate actually gives all employers cover. Otherwise, employees would simply abandon those dentists who don’t mandate the vaccine. Now everyone has to have their shot to work in the industry.

Where do I go for up-to-date resources, it seems mandates continue to evolve?

Here are the mandates and links to the FAQs:

Alaska – Alaska Native Tribal Health Consortium

California – California Department of Public Health

Denver – Denver Public Health Orders, Denver Public Health & Environment Order (PDF)

Oregon – Oregon Secretary of State, Oregon.gov Vaccine News

Washington – Governor.WA.gov Vaccine Mandate Frequently Asked Questions, Proclamation by the Governor Amending Proclamations 20-05 and 2014 – COVID-19 Vaccination Requirement (PDF)

Federal – Path Out of The Pandemic: President Biden’s COVID-19 Action Plan (PDF)