Can Indian Health Care Providers Mandate Their Employees Receive the COVID-19 Vaccine?

Can Indian Health Care Providers Mandate Their Employees Receive the COVID-19 Vaccine?

By Heather Erb, Attorney at Law

As we face the largest inoculation effort in American history, many Indian health care providers and Tribes are considering whether to mandate their employees, particularly healthcare workers, receive a COVID-19 vaccine. Tribal nations possess the inherent power to mandate their employees be vaccinated. This regulatory power is derived from a Tribe’s inherent sovereign power to protect self-government and control internal relations. The sovereign authority of Tribes over employment matters extends to non-members. But whether and how a Tribe chooses to exercise this sovereign authority may depend on various legal and policy considerations. This article discusses issues related to Tribes and Indian health care providers mandating employee vaccination.

Why Do Some Employers Mandate Vaccines? While few examples of COVID-19 vaccine employer mandates exist today, instances of employer mandated flu vaccine along with the deadly and widespread impact of the current pandemic signal a potential rise in employers mandating employee vaccination. Various professional organizations including the Infectious Disease Society of America and the American Hospital Association have previously endorsed mandatory flu vaccination of healthcare workers. These entities have argued that mandatory vaccination policies have significantly increased the rate of vaccination among employees and community members. 

Should Employers Mandate the COVID-19 Vaccine? The issue of employer-mandated vaccine is a very unsettled area of the law. Many legal experts disagree about whether employers should or should not mandate vaccines for their employees. Also, employers must confront many policy considerations including an employees right to privacy and the rights of employees who may not be able to get the vaccine because of a disability or religious belief. For these reasons, it is critical that Tribal employers considering employer-mandated vaccinations consult their legal counsel.

What Current Guidance Exists on Employer COVID-19 Vaccine Mandates? On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published guidance addressing employer-mandated vaccines. This guidance is not binding upon employers, including Tribal employers, but rather provides EEOC’s current views on existing laws. EEOC cites to certain federal laws that limit how a non-tribal employer implements an employee vaccination mandate. While the federal laws referenced in the guidance do not necessarily apply to Tribes, the guidance may still provide, at a minimum, certain policy considerations for instituting an employer-mandated vaccine policy. Furthermore, if the guidance indicates employers are permitted to take certain actions, then it is almost certain that Tribes may take those actions as well.

Four Key Takeaways from the 12/16/20 EEOC Guidance

  1. Employers can possibly require COVID-19 vaccination for employees so long as certain requirements are met.
  2. Employers subject to the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 must comply with workplace laws which include providing exemptions for protecting the rights of employees unable to receive the vaccine as a result of disability or religious belief.
  3. If an employer determines that the presence of an unvaccinated employee presents a direct threat to the health and safety of persons in the workplace that cannot be reduced or eliminated through reasonable accommodation, the employer can exclude the employee from the workplace. This right to exclude, however, does not mean the employer has a right to automatically terminate the employee. The employer must take certain steps including assessing whether other accommodations such as remote work can be provided.
  4. Employers may ask or require employees to show proof they received a COVID-19 vaccine so long as certain precautions are taken to protect the privacy and prevent disclosure of any medical information beyond proof of vaccination.

Mandating Vaccine While in EUA Status. The guidance still leaves unanswered questions. There is not a uniform consensus among legal experts as to whether employers can mandate the COVID-19 vaccine while still in Emergency Use Authorization (EUA) status. Tribes considering mandating a COVID-19 vaccine in EUA status should consult their legal counsel first.

If you are a Tribe or Indian health care provider considering implementing a mandatory employee vaccination policy, you may first want to consider which employees will be subject to mandatory vaccination. While not all experts agree on the issue of employer mandatory vaccination policies, an employer may find more legal and policy support for mandated vaccination of healthcare workers than for non-healthcare workers. In conclusion, each Tribe and Indian health care provider will have their own unique considerations for requiring their employees to be vaccinated. For all of these reasons, it is critical to consult your legal counsel prior to implementing such a policy.

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