Across the country, health care employers are facing a pressing question: How do you increase the number of staff vaccinated against Covid-19?

While health care workers were among the first to be offered Covid-19 vaccines, data show that three months in nearly half of frontline health care workers had not received their first dose and nearly a third were either hesitant or not planning to get the vaccine. To increase vaccination rates, hospitals have launched education campaigns, offered financial incentives, and some have made vaccination mandatory for eligible employees. As we've seen with the flu vaccine, policies mandating vaccination are controversial, and the public health emergency (PHE) presents unique obstacles for health care employers considering Covid-19 vaccine mandates.

To get some clarity, we spoke with Kimberly Daniel, partner at the health care law firm Hancock, Daniel & Johnson, P.C., about the implications of mandating Covid-19 vaccines for your employees. Based on that conversation, Advisory Board identified five key questions health care employers need to consider before deciding to mandate the Covid-19 vaccine.

1. Are you complying with federal and state guidance?

The Equal Employment Opportunity Commission (EEOC) has stated that employers may require employees to be vaccinated with the well-recognized exceptions for those who have a protected disability and those who have religious objections. This gives employers cover to require vaccination before it's given full FDA approval. Although you can mandate vaccines, CDC guidance still requires masking and the use of other protective equipment in health care facilities, meaning that even if a facility's entire staff was vaccinated, the employer wouldn't be able to change the work environment.

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EEOC guidance also states that employers can offer vaccination incentives, but the incentives can't be coercive. While EEOC did not specify what would be considered "coercive," Daniel said she expects employers to have some leeway here. "This is just my personal view, but given the strong support for broad vaccination, it would surprise me very much to see a government entity pursue an employer for an incentive at this point, even a generous incentive," Daniel said.

Between CDC guidelines, the newly proposed Occupational Safety and Health Administration standards, executive orders, and state and local laws, health care employers face many conflicting requirements. Pressure can come from many directions, but ultimately, you need to do what's right for your organization. Getting your health care workforce to the place where it's functioning optimally, and your organization to a place where it is trusted by both staff and the community, should be a top priority.

2. Is a Covid-19 vaccine mandate the best way to achieve your goals?

Before you implement a Covid-19 vaccine mandate, you first must consider if it is the best way to achieve your goals.

Mandating vaccination rather than encouraging it could give health care employers a competitive advantage with individuals who want to receive care from fully vaccinated people. But it also can put you at a competitive disadvantage in terms of workforce retention. As Daniel explained, "Imposing a vaccine mandate could be the final factor that prompts an unsatisfied employee to leave."

Before deciding to mandate, remember that the science is evolving, and with time and more education, some of your vaccine hesitant staff may voluntarily choose to get vaccinated.

3. How will you manage individuals who have legitimate exemptions if you impose a Covid-19 vaccine mandate?

Even with a workforce Covid-19 vaccination mandate, there will still be legitimate exemptions. If you do decide to mandate, make sure you have a well-documented process that complies with the Americans with Disabilities Act (ADA) for disability exemptions and Title VII for religious exemptions.

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Health care employers also need to be prepared to navigate workforce communication issues and pushback from staff. When putting new processes in place, make sure to do so with sufficient notice to properly explain the mandate as well as manage exemption requests.

One thing to keep in mind: Employers who already have a mandatory flu vaccine policy in place may be ahead of the curve as they're accustomed to working through and managing exemption requests and their workforces are familiar with a mandate related to a vaccine.

4. How will you collect 'proof of vaccination'?

This may be one of the most challenging questions employers will face because asking for proof of vaccination could unintentionally create some legal risk or exposure. "While you can ask for proof of vaccination, you cannot ask why someone isn't vaccinated, without creating potential risk," Daniel said. 

Right now, employers can require proof of vaccination, but vaccination status is considered confidential medical information. So, employers will need to determine how you'll go about utilizing, collecting, and storing the information in a way that is lawful. Will you require workers to show or provide a copy of their vaccine card or can they simply state whether or not they are vaccinated?

Health care employers also will need to determine how to keep that information confidential as required by the ADA and how to protect workers who do not get vaccinated from discrimination or harassment.

There is a wide range of protected traits in every health care organization's workforce—gender, age, religion, disability—and measures that could discriminate based upon protected traits are likely to be challenged as illegal. For example, Daniel explained that distinguishing between vaccinated and non-vaccinated staff by mandating stickers on a name badge may reveal confidential medical information.

Navigating this divide could become even more difficult if CDC changes its masking guidance so only unvaccinated health care workers must be masked. In such a case, it may become clear to both patients and staff who is vaccinated and who is not, and patients may want to be treated by vaccinated health care providers. Employers will need to form a plan around how to deal with these requests—and how to ensure staff are not subject to harassment or discrimination based on their vaccination status.

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In addition, health care employers will need a plan for how to manage return to work with a combined vaccinated and unvaccinated workforce. Vaccinated staff may want to be with their vaccinated coworkers, while others may be interested in continuing to work remotely. Managing full time remote work requests in a way that's nondiscriminatory can be challenging. Be sure to offer the same opportunities and promotion considerations to both remote and in person staff.

5. How will you address workforce retention concerns?

As with any vaccinate mandate, employers should expect some level of pushback from staff who do not wish to be vaccinated, particularly from those whose reasons do not fall into the legally exempted categories.

Daniel explained that while the vaccine remains under the emergency use authorization there is some legal risk. For example, a group of employees at Houston Methodist filed a lawsuit challenging the hospital's Covid-19 vaccine mandate. While the hospital's mandated has been upheld upon initial review, a protracted review process is likely. Full FDA approval would largely render the risk associated with EUA moot, but health care employers still need to have a plan in place to address employees' concerns regarding vaccination or they risk losing staff to a hospital that does not mandate Covid-19 vaccine.

Conversations with trusted advisors, whether it's the employees' personal physicians or the organization's Health and Wellness team, to address questions and concerns, as well as seeing peers become vaccinated have been influential in increasing openness to the concept of vaccination.

One final consideration

There are a lot of challenges that come with mandating the Covid-19 vaccine and many of those challenges won't end once FDA approval is granted. Begin planning now for how you will handle proof of vaccination collection, exemption requests, and harassment and discrimination concerns.

One other food for thought: the debate around Covid-19 vaccine mandates will likely influence mandatory flu vaccine policies. There's been a long, slow push toward mandatory flu vaccines and employers that do not currently have a mandatory flu vaccine policy may find it easier to adopt the policy once a mandatory Covid-19 vaccine policy is in place.