Avoiding COVID-19 Vaccine Legal Hurdles

This is part 2 of a 2-part series.

Part 1: Pandemic Aside, Many Report Financial Success in 2020. Now What?

Some protocols and safety measures practices and med spas should and should not be doing during and after the pandemic still aren’t clear, according to Thiersch.

It is not entirely clear, for example, how to respond to a patient or employee testing positive for the virus. The best approach, according to Thiersch, is for practices and med spas to follow applicable Occupational Safety and Health Administration⁴ and Centers for Disease Control and Prevention (CDC)⁵ guidelines, while striving to implement plans and procedures that are safe, legal, and show the public that the practice or med spa is looking out for the well-being of the community.

“Can you require employees to take the vaccine? Can you ask patients and or employees whether they have had the vaccine? These implicate HIPAA issues, [Americans with Disabilities Act (ADA) of 1990] ADA issues, Title VII, and employment law issues, as well as patient privacy issues. It really is kind of a whole new landscape that lawyers are having to navigate,” Thiersch says.

The bottom lines are that, yes, you can require your employees to get vaccinated, and yes, you can ask patients or employees if they have received the vaccine, he says.

“But the real issue arises if they refuse the request. Both scenarios raise serious employment law concerns, not to mention public relations issues and messaging issues to your employees,” Thiersch says.

Employers can make the choice of whether to insist that employees are vaccinated for COVID-19. As there continues to be unanswered questions about the vaccines, McCollough says he will not mandate that his employees get a vaccine, and instead will let them decide.

The recent news of filler reactions from the Moderna COVID-19 vaccine probably will not be a legal problem going forward, according to Thiersch.⁶

“That obviously was an issue that rattled the industry. We looked into it and the data that has been shown from research is that it is a small problem, much in line with other allergic reactions that go along with the vaccine. It has not been anything that has caused us a lot of consternation,” Thiersch says.

Additionally, increased use of telemedicine is something aesthetic practices should keep their eyes on, Thiersch says.

“We’ve seen a massive increase in the use of telemedicine and virtual consults,” Thiersch says. “That’s great but once the pandemic is over there is some question as to whether or not some of these regulations that were opened up specifically for COVID-19 will be dialed back. Those rules can change. We’re urging people to be cautious.”

References

1. AmSpa releases results of AmSpa 2020 Medical Spa Industry Short Survey – COVID-19’s Impact. Tuesday, January 19, 2021. Accessed February 25, 2021. https://www.americanmedspa.org/news/548017/AmSpa-Releases-Results-of-AmSpa-2020-Medical-Spa-Industry-Short-Survey--COVID-19s-Impact.htm
2. The zoom effect: why plastic surgery and cosmetic procedures might be more popular because of the pandemic. Fortune. Article. Published October 3, 2020. Accessed March 8, 2021. https://fortune.com/2020/10/03/zoom-calls-plastic-surgery-cosmetic-procedures-botox-fillers/
3. Paycheck Protection Program. U.S. Small Business Administration. Accessed March 8, 2021. https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-program
4. Coronavirus disease (COVID-19). United States Department of Labor: Occupational Safety and Health Administration. Accessed March 8, 2021. https://www.osha.gov/coronavirus
5. COVID-19. Centers for Disease Control and Prevention. Accessed March 8, 2021. https://www.cdc.gov/coronavirus/2019-ncov/index.html
6. Thiersch AR. Letter from the CEO: let’s talk about the vaccine and filler issue. AmSpa Now. January 5, 2021. Accessed February 25, 2021. https://www.americanmedspa.org/blogpost/1633466/363500/Letter-from-the-CEO-Let-s-Talk-About-the-Vaccine-and-Filler-Issue?hhSearchTerms=%22moderna+and+vaccine%22&terms=