By Carrie Cherveny Esq., Ric Poirier Jr. Esq., and Peter Reilly

The nation’s long-term care operators may be thinking that the worst of the pandemic risks are behind them as surges have moderated and the pace of COVID-19 vaccinations increases. In addition, the FDA recently issued Emergency Use Authorization (EUA) for the Johnson & Johnson coronavirus vaccine, making it the third approved vaccine

However, operators of long-term care facilities face a number of hidden risks associated with their employees, residents, and visitors.

Several factors pose challenges to operators as they make their way through what remains a challenging environment. Long-term care employers are attempting to balance the health and safety needs of residents, employees and the business. They need to be aware of the hidden risks associated with workplace vaccination programs and workplace safety.

Generally, there are two foundational areas of concern:

  1. The complexities of COVID-19 vaccination mandates
    Here’s a question long-term care facility operators ask asking: Can an employer mandate vaccination of its workforce? As a general rule, employers, under certain circumstances, may require employees to receive the COVID-19 vaccine. However, there are specific and certain limitations. Employer vaccination policies are subject to two significant federal laws: (1) the Americans with Disabilities Act; and (2) Title VII of the Civil Rights Act of 1964 – Religious Discrimination. As a threshold matter, employers must ensure that the rationale requiring vaccinations is based upon objective facts, tied to employees’ job descriptions, and administered consistently. 

    However, employers should proceed with caution and remember that the current COVID vaccines have been provided with Emergency Use Authorization. Never before have the U.S. EEOC or the courts addressed whether an employer may mandate a vaccine only approved for emergency use. Employers that mandate the vaccines in the workplace may risk claims that the mandate puts the employees at risk and violates their obligation to provide a safe working environment. Conversely, not mandating the vaccine in the workplace may give rise to the very same claims.
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  2. The legal risks of lax COVID-19 workplace safety
    Healthcare providers have been subject to employee litigation since the pandemic began, with retaliation and whistleblower complaints leading the way. This trend has been particularly prevalent among smaller organizations employing 50 or fewer. Between January 30, 2020 and March 3, 2021, there have been 1,777 cases filed, with nursing homes and long-term care facilities among the most frequently sued.1

    Another major concern has been the failure of long-term care facility managers to take employee health and safety concerns seriously. Both the CDC and OSHA have issued industry-specific health and safety guidelines that includes, among other things, the use of personal protective equipment (PPE) such as face masks, increased cleaning and disinfecting, and administrative controls such as improved ventilation and air filtration. Employers that ignore or fail to enforce the recommended standards create significant risk of litigation and tort claims. Moreover, employers that ignore employee complaints and then take adverse action against those employees lay fertile groundwork for whistleblower actions.

    The risk for litigation becomes more pronounced in cases where an employee claims that he or she contracted COVID-19 in the workplace. In many cases, workers’ compensation carriers have been denying workplace COVID-19 claims. Plaintiffs may file negligence (or tort) claims against individuals and organizations. 

    3. The best protection against risks

    One rule of thumb is that the more involved the HR team is in workplace safety initiatives, the less litigation they are likely to see. HR and health and safety/risk management departments should take the lead on comprehensive efforts to meet health and safety requirements, during the pandemic. These efforts should include:

    • Documentation: Clearly written policies and protocols should be created, maintained and shared, centered on compliance with regulations and guidelines for a safe environment. Recourses for employees with concerns should be included.
    • Governance: A cross-functional committee can determine monitoring and compliance needs across the organization.
    • Specialists: Given the robust regulatory changes, employers may consider assigning regulatory monitoring to specific individuals in the organization. Keeping up with changes in standards and practices of OSHA, the CDC, and the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) should be a high priority.

    Talk to a HUB industry specialist to understand the risks and rewards of vaccination programs in the workplace.

    1 Fisher Phillips, “COVID-19 Employment Litigation Tracker And Alerts,” accessed March 8, 2021.