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PANDEMIC: COVID-19 RESOURCES & UPDATES

Mandating COVID-19 Vaccination in the Healthcare Workforce

Posted/Updated on 9/15/21 7:30 AM

President Biden's New COVID-19 Vaccine Mandate

The White House recently announced President Biden's Action Plan to combat COVID-19. The Plan introduces multiple employee vaccination strategies that are likely to impact healthcare employers, including:

  • An Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis
  • A Centers for Medicare & Medicaid Services (CMS) requirement for COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement
  • Executive Orders requiring vaccination for (1) employees of the executive branch of the federal government and (2) employees of federal contractors and subcontractors

Details related to Plan compliance enforcement for impacted employers remain uncertain. NORCAL Group insureds are encouraged to watch for further guidance and directives.


Historically, vaccines have been relied upon as the most effective strategy to prevent disease transmission. Although the COVID-19 vaccine is widely available to healthcare workers, surveys reveal significant levels of vaccine hesitancy in this population.[1] Top concerns include vaccine development occurring too quickly; not receiving enough information about safety, side effects, and administration; and skepticism regarding the clinical trial process. With over 160 million people now fully vaccinated in the US, safety and efficacy of the available vaccines is better understood. An Associated Press analysis of data from May 2021 shows that fully vaccinated people account for less than 1.1% of COVID-19 hospitalizations and 0.8% of COVID-19 deaths. [2]

Prior to COVID-19 vaccine availability, the best and only method to prevent the spread of SARS-CoV-2 relied on the implementation of pandemic infection prevention and control measures per CDC guidance. Now that the available vaccines demonstrate effectiveness in preventing asymptomatic and symptomatic COVID-19 infection and in preventing hospitalizations and deaths, this is an added measure that can be taken to ensure the safety of both patients and healthcare workers. In fact, after review of vaccine efficacy in clinical trials, real-world effectiveness studies, and post-authorization safety monitoring a findings, a multispecialty consensus statement released in July 2021 recommends COVID-19 vaccination should be a condition of employment for healthcare workers.

Mandatory Vaccination Considerations and Guidance

Notably, the consensus statement acknowledges exemptions to mandatory vaccination for healthcare workers with medical contraindications to all of the available vaccines and other exemptions that are specified by state or federal law.[3] Examples of federal law exceptions include religious accommodations under Title VII of the Civil Rights Act of 1964 and medical accommodations under the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) addresses the question regarding how employers should respond to employees who indicate they are unable to receive a required COVID-19 vaccination due to disability or religious beliefs. The EEOC explains that EEO laws do not prevent employers from mandating vaccination, but that Title VII and the ADA require reasonable accommodations be provided to employees who opt not to get the vaccine due to religion or disability, unless the accommodation would create an undue hardship for the employer.[4] Additionally, the EEOC allows employers to inquire about employee vaccination status including proof of vaccination without violating federal laws as long as this information is stored confidentially.[3,4]

The Federal Occupational Safety and Health Administration (OSHA) published the COVID-19 Healthcare Emergency Temporary Standard effective June 21, 2021. While a position on vaccine mandates was not directly provided, the Standard does support vaccination by requiring employers to provide PTO to employees for time spent getting and recovering from vaccination and also allows employees who have been fully vaccinated to stay in the workforce after COVID exposure.[3] The 22 states with OSHA-approved State Plans may have varying requirements, but these must be at least as effective as Federal OSHA in protecting workers. If you practice in one of these states, be sure you are familiar with the details of your State Plan. Additional local and state laws may impact employee rights and employer responsibilities and are also important to understand.

You may be considering mandatory vaccination of healthcare workers as an added infection control strategy to protect them and other facility employees, as well as patients. Additionally, a fully vaccinated workforce can improve infection control in the entire community by breaking the chain of transmission in and out of healthcare facilities. Consult with a health law and employment law attorney prior to finalizing any mandatory vaccination plan to ensure your compliance with all applicable federal and state laws.

Additional Resources


[1] Biswas N, Mustapha T, Khubchandani J, et al. The Nature and Extent of COVID-19 Vaccination Hesitancy in Healthcare Workers. 2021.J Community Health. https://link.springer.com/article/10.1007/s10900-021-00984-3. Accessed July 21, 2021.

[2] Johnson C, Stobbe M. Nearly all COVID deaths in US are now among unvaccinated. Associated Press website. https://apnews.com/article/coronavirus-pandemic-health-941fcf43d9731c76c16e7354f5d5e187. Published June 29, 2021. Accessed July 20, 2021.

[3] Weber D, Al-Tawfiq J, Babcock H, Bryant K, Drees M, et al. Multisociety Statement on COVID-19 Vaccination as a Condition of Employment for Healthcare Personnel. [published online ahead of print July 13, 2021]. Infection Control & Hospital Epidemiology DOI: 10.1017/ice.2021.322. https://www.cambridge.org/core/journals/infection-control-and-hospital-epidemiology/article/multisociety-statement-on-covid19-vaccination-as-a-condition-of-employment-for-healthcare-personnel/690D1804B72FFF89C5FC0AED0043AD62 Accessed July 20, 2021.

[4] EEOC. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (Section K). Updated June 28, 2021. Accessed July 20, 2021.

Topics: COVID-19, Vaccine, Vaccination

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The information provided on this site offers risk management recommendations and resource links. Guidance and recommendations contained in this website are not intended to determine the standard of care, but are provided as risk management advice only. The ultimate judgment regarding the propriety of any method of care must be made by the healthcare professional. The information does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about this topic should be directed to an attorney. NORCAL Group makes no representation regarding compliance with state or federal law by offering these resources. These documents and links are provided for your convenience and reference only, and the provision of these materials does not mean NORCAL Group is affiliated or associated with these organizations.