By Renee E. Coover, JD, ByrdAdatto, and Patrick O'Brien, JD, Legal Coordinator, American Med Spa Association (AmSpa)

Since the beginning of the COVID-19 pandemic, being a business owner has become much more complex for business owners, including those in the medical aesthetic industry. The introduction of COVID vaccines, and particularly some people's reluctance to receive them, have complicated matters even further.

AmSpa has received numerous questions from members and non-members alike concerning the responsibilities medical aesthetic practices have to both their clients and their employees in the current environment. Here are answers to several of the questions we have recently received; we anticipate there will be others we'll need to address, and we envision using this post as a living document.

Can we require all employees entering the workspace to be vaccinated for COVID-19?

It depends on your state's current laws. There is no federal law that expressly prohibits employers from mandating COVID-19 vaccinations as a condition of employment. In fact, some states—including California—obligate employers to determine employees' vaccination status. However, in several other states, there is proposed legislation that, if passed, would have the effect of prohibiting employers from mandating COVID-19 vaccinations as a condition of employment; other states already are operating under executive orders to this effect. So, before implementing an employee vaccine policy, it is important to check with your state's laws and regulations to determine if it is allowed.

What should we do if an employee refuses to get vaccinated?

This depends on the employee's reason for refusing to be vaccinated. If an employee has a disability covered by the Americans with Disabilities Act or a sincerely held religious belief protected by Title VII of the Civil Rights Act, or the employee is pregnant, an employer must go through an interactive process with the employee to determine if there is a reasonable accommodation for the employee that would not be an undue hardship on the employer.

Can we ask an employee about their vaccination status?

It depends. Generally, employers can ask about employees' vaccination status and require proof of vaccination. In fact, several states and municipalities require employers to determine vaccination status of employees. But at least one state—Montana—has adopted a law that prohibits discrimination based on COVID-19 vaccination status. Montana's law does not prohibit an employer from asking employees whether they have been vaccinated, but rather limits what an employer may do with that information if it does collect it—and, potentially, sets up claims for "vaccine status" discrimination down the road, both from vaccinated and non-vaccinated workers.

How do mask mandates apply to medical spas?

This depends on whether it is a state or local mandate and who is included in the mandate. Many states—including California, Illinois and New York—currently require the public to be masked in all indoor settings, and in these states, all medical spa employees must be masked pursuant to state order. Though not as common as in 2020, mask mandates on medical facilities would likely include medical spas as well.

Under mask mandates, can we treat patients having facial procedures requiring them to be unmasked?

Possibly. This again depends on the language of the mask requirements. The orders may provide exemptions for medical or personal care services that require the mask to be removed. However, these mandates rarely include any carve-outs making the status uncertain.

What is the liability risk if we have an unvaccinated employee and they contract the virus or expose a patient to the virus?

An unvaccinated employee can present some risks for businesses, particularly given the possibility of the virus being spread by asymptomatic individuals. Employers should evaluate the direct exposure of any unvaccinated employees to the public, the risk that employees may expose other employees who are in direct contact with the public, and the risk that the virus may be present on their premises. To bring a claim against a business, a third party generally must show that the infection occurred on the business's premises, which may be difficult. In defending such claims, it is important for businesses to show that they have implemented protections against exposure to employees who are not vaccinated—such as remote work, masks and social distancing—and that the claimant could have been exposed elsewhere. Some states have passed laws that grant immunity from civil liability for COVID-19-related claims, and similar legislation is pending in other states.

Can we fire an employee for refusal to get vaccinated?

This depends on whether the employee has a valid exemption from vaccination—disability, sincerely held religious belief, pregnancy, etc. If they do have a valid exemption, the employee cannot be terminated for refusal to get vaccinated. If the refusal is based on personal preference and there is a practice policy to vaccinate the entire workforce, the employer can potentially terminate the employee for failing to follow practice policy without a valid basis. As with any employment termination, it is important to maintain proper documentation for the situation.

Can we offer incentives to employees to get vaccinated?

Many companies have offered vaccination incentives, including paid time off, paid sick days, cash payments and even gift cards. An employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent, provided the incentive is voluntary and is not so substantial as to be coercive. If employers are considering providing payment to encourage employees to get vaccinated, be aware that certain states may view these incentives as violating equal pay or fair employment practices laws, as Oregon state labor department guidance demonstrates.

Can we test employees for COVID?

According to the U.S. Equal Employment Opportunity Commission, employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Under federal law, employers can require employees to get tested. The answer is not so clear when looking at individual states, and if employers do require testing, they must take steps to ensure the testing procedures are legally compliant, reliable and effective. If an employer wants to test employees for COVID-19 on site, employers should be strategic about testing and have a plan for what to do when results are positive. According to the U.S. Centers for Disease Control and Prevention, onsite testing is most appropriate in areas where there is moderate to substantial community transmission of COVID-19 and at workplaces where employees are in close contact with each other or the public.

AmSpa members receive a complimentary 20-minute Introductory Compliance Assessment with a ByrdAdatto attorney. Click here to learn how to join AmSpa today!

Renee E. Coover, JD, is an associate with ByrdAdatto, a law firm focusing on business, healthcare, and aesthetics. She has a unique background, blending litigation with healthcare law. A former litigator in high-stakes employment cases, Renee has extensive experience with counseling and representing businesses in employment matters, policies, and contract disputes, and defending business owners in state and federal trials. She has also served as General Counsel for the American Med Spa Association, advising health care professionals on regulatory and legal issues governing the medical spa industry.

Patrick Armstrong O'Brien, JD, grew up in West Texas loving the outdoors and scouting, earning the rank of Eagle Scout. After attending Southwestern University, he worked in margin trading with a major investment brokerage. He returned to school and earned a law degree from Southern Methodist University. He brings his legal training and business acumen to AmSpa to help members keep up with legislative changes.