As COVID-19 vaccines are becoming more widely available, healthcare organizations must now update their COVID-19 safety programs. Specifically, developing and implementing a workplace vaccine policy is fraught with risk. Watch this on-demand webinar to learn about the legal, compliance, and insurance risks you may be facing.
How can I prevent employees from suing me for negligence or claiming that I didn’t provide a safe working environment?
While you can never prevent employees from suing or making claims against the employer (anyone can sue anyone anytime), you can engage in some measures now to be in the best position in the event that you have to defend yourself later. Employers should implement as many of the CDC, OSHA, JACHO, state and industry recommendations as possible. Being able to demonstrate that you followed regulations, guidance, and best practices will be an important component to any defense. Employers should memorialize all of their safety practices in a widely distributed policy and provide employee and manager training on that policy. Employers should also ensure that they enforce their policies across the organization. Enforcement includes written documentation such as employee discipline and write-ups. Remember, health and safety policies are a “standard of conduct” and a performance expectation by all employees.
Everything keeps changing! How do we keep up?
Employers are finding themselves overwhelmed by the rapid evolution of federal, state, and industry rules and guidance. It may be helpful for an organization to create a committee dedicated specifically to staying on top of the vast and rapid changes. This committee could be responsible for monitoring changes and updating the relevant and responsive policies and protocols in the organization. It should also coordinate with human resources and those responsible for training and communication to ensure that changes are communicated through the organization. Finally, this committee should also stay connected with those responsible for purchasing and equipment (such as PPE, cleaning, and disinfecting supplies) to ensure that the organization maintains all of the responsive and necessary supplies.
We have a lot of employees afraid of getting the vaccine. What best practices have you seen to increase vaccinations in the workplace?
Many employers have found great success with vaccine committees comprised of a diverse group of employees from throughout the organization including staff, hourly, exempt, managers, and leadership. This committee should be representative of the diverse employee population in the workplace. The committee would develop recommendations for education and communication in the organization regarding the workplace vaccine policy, vaccine safety and risks, and access (where and how to get it). We’ve also heard some great success stories by organizations that bring in local community leaders to speak with employees—this could include religious leaders, elected officials, and healthcare professionals. Like the vaccine committee, it’s important that these speakers also reflect the diversity in the organization.
With so much still unknown about the vaccine and how to manage its use at my location(s), what is a good first step from a risk management standpoint?
The best first step in this process is to establish protocols, rules, guidance, and best practices that comply with the guidance and regulations of both the federal and local health authorities. This should be done via a coordinated effort of the executive management team, Human Resources and the assistance of outside counsel. This is your first line of “defense” for addressing the myriad of issues and questions that may arise from the vaccine “rollout” across the U.S.
Does the PREP Act offer my organization immunity protections that are broader than my local liability rules and regulations?
The PREP Act guarantees of immunity are available to those who manufacture, distribute, administer, use, and coordinate drugs and devices used to combat COVID-19. This is generally good news for most senior care organizations under the current guidelines for the application of this federal law.
The purpose of the Act is to encourage the quick and efficient development and deployment of countermeasures—like equipment, diagnostics, treatments, and vaccines—during a public health crisis, like the current COVID-19 pandemic. In January 2020, HHS Secretary Azar declared a public health emergency on January 31, 2020. He then issued a Declaration (see 85 F.R. 15198), effective February 4, 2020, making PREP Act protections available in the fight against COVID-19.
What are the limitations on immunity under the PREP Act?
The scope of immunity is broad, but not absolute. Liability protections are not available in situations involving willful misconduct that proximately caused death or serious injury. The “willful misconduct” exception is a high bar: lawsuits must go before a three-judge court in the U.S. District Court for the District of Columbia and a plaintiff must establish that the willful misconduct proximately caused death or serious injury.
To date, the PREP Act immunities have not been found to preempt the state law causes of action upon which most claims are filed. The Secretary of the Department of Health and Human Services has issued very pointed advisory opinions and comments that the PREP Act should completely preempt any and all state law causes of action, thus rendering a uniform and consistent legal platform nationwide.
NOTICE OF DISCLAIMER: The information herein is intended to be educational only and is based on information that is generally available. HUB International and BlueWilliams LLC make no representation or warranty as to its accuracy and is not obligated to update the information should it change in the future. The information is not intended to be legal or tax advice. Consult your attorney and/or professional advisor as to your organization’s specific circumstances and legal, tax or other requirements.
