Looking to Establish a Vaccine Mandate in Your Practice?
Please note: NYSDA or SDDS cannot advise members about their patient intake policies and preferred employment practices. Seek guidance from your personal attorney on your particular circumstances.
Before you establish a vaccine mandate in your practice, be sure you know the facts and are following the law.
Employee Vaccination Mandate
The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance for employers on office policies in relation to the novel coronavirus (COVID-19) pandemic. The EEOC notes that while mandatory COVID-19 employee vaccination policies are permissible, there are many legal considerations that must be addressed properly. Dental employers wishing to implement a mandatory COVID-19 vaccination policy for employees should contact their attorney for help navigating the legal and liability issues involved. You can read the announcement and summary of the EEOC COVID-19 guidance.
Terminating someone who has a religious objection, disability or medical contraindication for not getting the vaccine can be deemed an illegal act of discrimination. You should always consult your own attorney before asserting non-vaccination as grounds for termination.
The New York State Division of Human Rights has set up a hotline for questions about discrimination issues related to COVID-19. The telephone number is: 1-888-392-3644.
Interviewing Potential Employees
It is prohibited to ask medical questions of any person you are interviewing for a job. Once you have made a conditional offer of a job, and prior to the offer being accepted, you can then ask about COVID-19 and vaccination status. The job offer can be withdrawn if the applicant’s answer is not acceptable to you as the employer. This is only applicable if the same process is followed for any applicant offered the same position.
You can advise applicants in advance that they will be asked about their vaccination status and that if an offer is made, the job offer would be conditional based on vaccination status.
Vaccination Status and Treating Patients
You can decide not to accept new patients who are not vaccinated as a general legal principle. However, be advised that New York State classifies COVID-19 as a disability for disability benefits purposes. This means that the state may treat COVID-19 the same way it treats HIV status and you cannot, as with HIV, turn away disabled patients or patients you perceive may be disabled. New York has not clarified the extent to which COVID-19 disability will be applied (making this an unsettled legal question), although the State Division of Human Rights mentions it prominently as a possible cause for racial and national origin discrimination.
For existing patients, you will need to consider that turning them away may create situations of abandonment or neglect. NYSDA strongly advises that you consult with your malpractice carrier and personal attorney.
Not sure where to start? The New York State Dental Association offers a panel of attorneys and law firms to whom NYSDA members can go for legal advice on dental matters. The attorneys have a minimum of five (5) years experience in handling specific dental matters and agree to provide an initial consultation free of charge to NYSDA members and give a 10 percent discount off their usual fees.
