A Philly doctor made the COVID-19 vaccine mandatory. Then he lost 7 staff members

Federal guidance supports employers’ right to require the COVID-19 vaccine for all employees. But doing so can be a tough decision, and a legal gray area remains.

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Dr. Eric Berger stands inside his Center City Pediatrics office

Dr. Eric Berger at his Center City Pediatrics office in Philadelphia. (Kimberly Paynter/WHYY)

The karaoke party was the final straw for Dr. Eric Berger, the owner of Center City Pediatrics.

Berger had already started working on a mandatory coronavirus vaccine policy for his staff when two unvaccinated medical assistants came to work sick after attending a birthday party in April.

“I felt burned, because we had really gone over and beyond … through the entire epidemic to try to keep people safe,” said Berger. That included offering incentives such as an extra vacation day for workers who received a vaccine. Four unvaccinated staffers who sang karaoke that night eventually tested positive for COVID-19, and administrators scrambled to figure out who might have been exposed.

The timing could not have been worse. After taking a financial hit during the pandemic, Center City Pediatrics was trying to encourage families to feel comfortable making appointments again. “We had just sent out [an email] blast, a week or so before, explaining why we were a safe place for you to bring your child,” said Berger.

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Federal guidance supports employers’ right to require the COVID-19 vaccine for all employees who physically enter the workplace, allowing for religious and medical exemptions when possible. Some universities, nonprofits, and law firms in the Philadelphia region have implemented vaccine mandates. But doing so can be a tough decision, said employers and employment attorneys, and a gray area remains.

After consulting with attorneys, leadership at Center City Pediatrics gave all remaining unvaccinated staff two weeks to get a jab. Two people quit immediately according to David Bannett, practice administrator. Eventually, a total of seven staff members left.

Losing staff at a critical time for the practice gave Berger pause about his decision, but ultimately, he believes it was the right thing to do.

“It’s worth it, but it has been very difficult,” said Berger.

Keystone Crossroads asked to be connected with the employees who left, but Berger and Bannett declined after they said their practice began receiving attention on an anti-vaccination website.

Medical assistant Brittany Kissling, 33, said she had initially been “nervous” but ultimately decided to get vaccinated, as the breadwinner in a family with four kids. “Ultimately, I could not afford to take that risk,” she said. Still, she understood the hesitancy of her peers.

“Because it was so new, they were just not comfortable,” she said.

Where to draw the ‘hard line’

The federal government recently clarified the legal ramifications of requiring vaccines at work. However, misinformation, the politicization of COVID-19, and distrust of public health officials can make mandating vaccination tricky, experts said.

“Part of this really is employee perception and nationwide perception of the vaccine,” said Alana Genderson, associate attorney focusing on labor and employment with Morgan Lewis. “People think that they have this right to refuse vaccination, and that alone is powerful.”

On June 12, a federal judge dismissed a case brought by 177 workers at a Houston area hospital, who argued they should not be fired if they refuse to get vaccinated because the vaccines are “experimental.” The fact that the vaccines available have emergency use authorization from the Food and Drug Administration, not full approval, fueled their argument. Judge Lynn Hughes ruled that the hospital system was within its rights to make vaccination a condition of employment.

The Centers for Disease Control and Prevention recommends that everyone above the age of 12 gets vaccinated. Each vaccine went through clinical trials involving tens of thousands of participants and 310 million doses have been distributed in the U.S. alone, according to the federal government agency. Serious side effects are rare and negative long-term effects unlikely, as vaccine monitoring shows side effects typically emerge within six-to-eight weeks. As access to inoculations has become widespread, cases of COVID-19 have decreased dramatically, allowing many virus-related restrictions to loosen.

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As these trends emerged, the Equal Employment Opportunity Commission released new guidance in May, affirming that employers can require employees to be vaccinated in order to enter the workplace. It also stated that asking employees for proof of vaccination is not discriminatory, but that information is considered confidential.

Companies must make accommodations when an employee does not get vaccinated due to a disability or sincerely held religious belief, practice, or observance, “unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.” Those accommodations could include allowing these employees to wear masks, work in a separate space, or adjust their schedules. In a health care setting, that balance can tip towards undue hardship more easily if unvaccinated employees are not able to work with patients, employment attorneys said.

When it comes to religious observance, a small number of sects have registered concerns.

”Most religions have no prohibition against vaccinations, however some have considerations, concerns or restrictions regarding vaccination in general, particular reasons for vaccination, or specific vaccine ingredients,” according to a survey of U.S. religions and denominations released by the Vanderbilt University Medical Center.

Even with the federal government standing behind employers, some legal uncertainties remain.

Dr. Eric Berger sits in front of an illustration of a subway in Philly
Dr. Eric Berger at his Center City Pediatrics office in Philadelphia. (Kimberly Paynter/WHYY)

“Coming in hardline right now is certainly something I would never advise,” said Marjorie Obod, chair of the Labor & Employment Group at Dilworth Paxson. She has been counseling employers to take a pragmatic approach in order to avoid getting into difficult and medically probing conversations with their staff.

For example, misinformation about vaccination and infertility has spread across social media. Obod said even if the medical establishment is uniform in saying vaccines are safe for people who want to conceive, she advises employers against creating employee policies where they would end up “battling with them about whether or not [vaccination harms] their ovaries.”

Instead, employers can survey their staff, and try to create workarounds for those who do not want to be vaccinated, she said. Fully vaccinated employees may not wish to work alongside unvaccinated colleagues, causing even more friction.

Resistance can come from unexpected corners. “Two of the clients I have, two of the HR directors, don’t want to get vaccinated,” said Obod.

For Dr. Eric Berger, part of the argument was philosophical.

“The belief in vaccines is too fundamental for what we do,” he said. “If somebody has that much vaccine hesitancy. I’m not sure that working in a primary care pediatric office is the right place for them.”

Broke in PhillyWHYY is one of over 20 news organizations producing Broke in Philly, a collaborative reporting project on solutions to poverty and the city’s push towards economic justice. Follow us at @BrokeInPhilly.

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