Some long-term care facilities are mandating COVID-19 vaccines among staff. Mandates divide the industry in profound ways, and threaten a myriad of legal challenges.
Lauren Clason has penned an excellent article for Congressional Quarterly Roll Call, warning that vaccine mandates "have sparked ethical and legal concerns and [already] prompted some nursing home workers to quit."
The Brief History of the Vaccine
It is important, in considering the impact of the vaccine and associated mandates, to appreciate the brief history of the vaccine. Bluntly, it is neither normal nor organic. On December 11, 2020, the FDA issued an Emergency Use Authorization ("EUA") for the Pfizer-BioNTech COVID-19 vaccine. Two days later, the first shipment of the vaccine left the manufacturing plant. Vaccinations began on December 14, 2020. Subsequently, on December 18, 2020, the FDA issued an EUA for the Moderna COVID-19 vaccine. The first shipments of the Moderna vaccine left a distribution center on December 20, 2020. An FDA report issued on December 8, 2020, highlights the unknowns that exist when a vaccine receives an EUA, including the limited amount of data to support the effectiveness of the Pfizer-BioNTech vaccine against asymptomatic infection and its unknown effect against transmission of COVID-19 from individuals who are infected despite vaccination.
While many articles implicitly or explicitly assail workers (or anyone) who expresses doubts or concerns regarding the vaccine, these authors ignore the the "unknowns" that inherently exists when a vaccine receives an EUA. Whether these "unknowns" merit refusal or delay, is not an objective fact, notwithstanding the narrative of most authors. Worse, failure to acknowledge rational concerns only substantiates irrational concerns; the motives of vaccine proponents are more readily assailable when they are not truthful about "unknowns."
Regardless, long-term care workers have not rushed to receive the vaccine as public health experts battle everything from unsubstantiated conspiracy theories to the simple fears that come with a novel virus and a more novel vaccine. In context, however, the historical success with vaccination utilization by long-term care industry staff is poor; nursing homes historically trail other health care institutions in vaccinations (see CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations).
The Law
At the federal level, the Equal Employment Opportunity Commission ("EEOC") has determined that COVID-19 meets the direct threat standard, meaning that "a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time." The Equal Employment Opportunity Commission (EEOC) issued guidance in December clearing COVID-19 vaccine mandates in accordance with laws like the Americans with Disabilities Act.
The EEOC's guidance acknowledges without explanation that the FDA has an obligation to "[e]nsure that recipients of [a] vaccine under an EUA are informed … that they have the option to accept or refuse the vaccine." Based on the EEOC's guidance to date, "a mandatory vaccination policy, with appropriate carve-outs for individuals with disabilities and sincerely held religious beliefs, may be permissible under federal law," according to the excellent analysis of one of the most respected firms in America, Jones Day..
But, even if it is lawful, there are problems:
"Namely, no federal agency has endorsed employer-mandated COVID-19 vaccinations explicitly, and historically these agencies have stopped short of endorsing mandatory vaccinations outside of certain industries; courts may disagree with a conclusion by the EEOC that mandatory vaccination is lawful; and there is a lack of legal precedent supportive of across-the-board mandatory vaccinations for all job positions in all industries. Moreover, even if mandatory vaccination is found lawful under federal law, such a policy carries additional risks, including potential liability under state law and damage to employee relations. And notwithstanding workers' compensation exclusivity, there is an open question whether tort or similar liability could attach to an employer, and under what circumstances, if employees are harmed by an employer-mandated vaccine.
Simply, the law pertaining specifically to emergency use authorizations, which require less efficacy and safety data than a full approval, is unclear. Dorit Reiss, a professor at University of California, Hastings College of the Law told CQ RollCall:
The law requires that recipients be informed of the right to refuse a vaccine under emergency authorizations, but also that they be informed of the consequences. Whether the consequences can include losing one’s job is unclear. If it goes to court, I think it’s a 50-50."
While incentives for mandating the vaccine in elderly care setting are strong, so are the disincentives and potential disadvantages. Employers might expose themselves to tort and negligence claims if something goes wrong, Robin Shea, a Constangy Brooks, Smith and Prophete partner told CQ Roll Call, adding:
“I would be concerned about that, and in a non-health care workplace, I would be thinking about that really hard before mandating it.”
Conclusion? There is risk everywhere.
Tearing Apart the Industry
As a result, the vaccine threatens the industry with workforce uncertainty and public mistrust, all amid threats of legal disputes as institutions contend with union agreements, state laws, and the vaccines’ lack of full Food and Drug Administration approval. A vaccine mandate also raises ethical issues. Clasen writes:
"Distrust in the government is widespread among low-income communities of color, which make up a disproportionate share of the long-term care workforce. Undergoing a mandatory vaccination from whiter, wealthier bosses seems disrespectful of their historic marginalization, worker advocates say. Distrust among white staffers is also widespread."
“Our members deserve to be heard on why they’re hesitant, and there are many reasons for it that aren’t ridiculous,” Lori Porter, CEO of the National Association of Health Care Assistants, which represents 26,000 certified nursing assistants, or CNAs, told CQ RollCall.
National polls show that as many as 70 percent of long-term care staff are still wary of the vaccine, Porter told CQ RollCall. Polling among NAHCA members is better, with about 50 percent of workers saying they’d take it.
Many CNAs are leaving the centers that are mandating vaccines. No nursing center in America today can afford to lose CNAs. According to Porter, there are "more than 170,000 openings for certified nursing assistants in skilled nursing facilities alone. The annual turnover rate stands at 120 percent." Locally, the Ohio National Guard was dispatched to help staff a nursing home when staff simply failed to show up for work. The Ohio National Guard served capably in that role, having in certain instances assisted with staffing institutions reeling from infection and self-quarantines.
Clasen interviewed Shanna Lacy, a 38-year-old nursing assistant at an Iowa nursing home, who is, according to Clasen "opting out of the vaccine over concerns about unknown long-term effects, driven by the vaccine’s fast-tracked timeline coupled with her distrust in government."
“I don’t feel like any corporation or government or whoever should make somebody do something to their body that they don’t want to,” Lacy told CQ Roll Call.
Lacy reportedly enjoys working at her facility and told CQ RollCall that she gets the flu vaccine every year. But, she said, the pandemic is not severe where she lives, and her belief in former President Donald Trump’s claims that he won the 2020 presidential election further undermines her trust in the government’s vaccine operation.
Lacy’s nursing home offers prize drawings to employees who take the vaccine, she said, while those who don’t are tested three days a week. She has not been told the facility would require her to take the vaccine, but if that happens, she told CQ RollCall she would find work elsewhere, or maybe even leave the field:
“I could work at a McDonald’s flipping burgers, making the same amount and not being made to take this vaccine,” she said. “Do I want to work at McDonald’s? No, I don’t. But if I had to, I would.”
Mandates for other vaccines like the flu are common, but requiring a vaccine authorized on an emergency basis is new ground. The Atria Senior Living chain is requiring all 14,000 of its staffers to be vaccinated by May 1:
“We’re very strong in the belief that our residents deserve to live in a vaccinated environment, and our staff deserves to work in a vaccinated environment,” CEO John Moore told CQ Roll Call. “And it’s a privilege to have access to the vaccine early.”
Moore reported that the number of staffers who had quit since implementing the mandate was low, but that staffers who ultimately refuse the vaccine will be let go. What constitutes "low" in an industry with 120% turnover, with a deadline still months away is unclear in the CQRollCall article.
According to Moore and CQ RollCall, dozens of other facilities are implementing vaccine mandates:
“No one wanted COVID. No one chose COVID,” Moore said. “There are no perfect answers. There’s only the next best answer, and that’s what we keep searching for."
In Pennsylvania, a vaccine mandate in a nursing home operated by Bucks County sparked a union dispute. The American Federation of State, County and Municipal Employees (AFSCME) filed a grievance with Neshaminy Manor, arguing that changes to employment terms are a bargaining issue under state law.
“I really feel as though this is something that can be worked out,” AFSCME District Council 88 Director Tom Tosti told CQ RollCall. “The workers there in that manor — and across every nursing home facility and every facility, whether it has mental health patients or whatever — have been working tirelessly since this pandemic hit. And to turn around and say now you’re mandated to put something into your body or you’re getting terminated isn’t fair at all for what they’ve done this past year.”
Bucks County says the mandate is on solid legal footing, pointing to the toll the coronavirus takes on the elderly. The facility lost 86 patients to the virus.
“Any staff that has not been vaccinated by the end of March could be laid off,” the county said in a statement.
The emotions of the decision for workers are often overlooked, Pennsylvania COVID-19 task force member Joshua Uy, medical director at Renaissance Healthcare and Rehabilitation Center in Philadelphia told CQ RollCall. Explaining the mechanics of the vaccine doesn’t necessarily erase fear. According to the CQ RollCall article, all of Renaissance’s residents were vaccinated compared with only 50 percent of its staff. Uy focuses on highlighting positive emotions that the vaccine can bring, such as ending isolation.
“I’ll try to remind them not to ignore what they’re feeling, but to sort of add other emotions, like this vaccine is hope,” he said.
Porter said NAHCA is considering a project to leverage the families of long-term care patients.
“CNAs don’t trust government. CNAs don’t trust their employers,” she said. “CNAs trust CNAs. Those two obstacles in the trust run deep.”
Relying on personal doctors, whom polling shows are a trusted source for many people, doesn’t always work. In Missouri, where NAHCA is based, many doctors weren’t wearing masks as recently as December, she said.
Porter also stresses that receiving priority for a vaccine with the potential to end a pandemic is an unprecedented industry victory:
“We continue to tell our members that this was a win for us,” she said. “Don’t let it be in vain.”
The public watches intently as the drama unfolds. Perhaps, rather than just feeding a collective fear of institutions, the public will orient its planning toward aging in place, thereby relieving stress upon both the long-term care industry and families seeking to cope with short and long-term care.
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