Neville Bilimoria
Neville Bilimoria

Well, what a month it has been. Just when we thought COVID-19 would get better this summer, nursing homes and assisted living facilities are finding they may have to take more aggressive precautions against the delta variant and other potential variants that could proliferate come fall and winter.  

While we have discussed vaccine mandates with our senior living clients over the past year, many nursing homes and assisted living facilities, for a long time, did not want to touch the issue of requiring vaccinations in the facility, for fear of alienating their own staff.

After all, staffing was a problem before the pandemic, and providers do not want to make matters worse by imposing a COVID-19 vaccine mandate that would then cause them to lose a significant portion of their facility staff.

But that was then. 

With the delta variant now causing havoc (especially among the unvaccinated) and now, even among the vaccinated, employers and senior care providers are revisiting the idea of mandatory COVID-19 vaccination for their workers.  

Indeed, on July 26, LeadingAge joined the call with at least 56 other professional healthcare groups in favor of mandatory COVID-19 vaccinations for facilities and their healthcare workers. Soon after, on July 29, AHCA/NCAL bolstered its stance in pushing educational efforts on the vaccine to increase vaccinations in facilities but also gave its support for facilities that chose to adopt mandatory vaccinations.  However, AHCA/NCAL warned that blind adherence to mandatory vaccination policies could be deleterious to some facilities:

“The pandemic has already exacerbated workforce challenges that long-term care providers [have] faced for years. Vaccine mandates may further challenge providers trying to recruit and retain a qualified workforce.

But all of this begs the question: If senior living facilities are in the business of healthcare and doing everything they can for the health of the residents served, then isn’t it simple science and simple medicine that would dictate in favor of mandatory vaccination? After all, isn’t the industry most concerned about the overall health of its residents?

The answer is, of course, yes. But the dynamic that most do not understand is the push and pull between preventing COVID-19 in facilities (through mandatory vaccination) vs. losing staff to mandatory vaccination that could ultimately lead to worsening health of the seniors they serve.  That is the rub.  

Providers we’ve talked to are balancing the health needs of residents. On one hand, mandatory vaccination makes perfect healthcare sense, but losing staff at the hands of those mandatory vaccination policies could make things worse in the facility, not better.  

But now the tide seems to be changing.  After all, those pesky “threats” of healthcare workers who would rather walk off the job than be vaccinated are not coming true for some facilities.  Indeed, recently CEO Katie Smith Sloan of LeadingAge uncovered that employer-instituted mandates have only resulted in a “modest loss” of employees.  

So maybe those threats of employees crying for their rights at the expense of their healthcare jobs aren’t valid threats after all.  Indeed, our clients have been echoing the same sentiments.  Those are the same clients that NEVER would have instituted mandatory COVID-19 vaccination only months ago.  

And then there are the states that are now taking the action that some nursing homes have refused to take, like Connecticut.  There, Gov. Ned Lamont issued an executive order on August 6, 2021 requiring Connecticut nursing home workers to be vaccinated against COVID-19 by September 7, 2021, or be subject to fines of as much as $20,000 per day. 

These types of state-mandated vaccination programs take the pressure off of facilities, who, in Connecticut, for example, can say to their employees about mandatory vaccination, that “the state made me do it.”  Plus, the facility employees presumably would have nowhere else to work if all homes in their State have mandatory vaccination policies.  

Whatever vaccine policy facilities choose, one thing is certain: Each facility is different. What are the right facility vaccine practices in one state, or even one area of one state, may not translate to different areas where wholesale walk-offs would occur with mandatory vaccination policies.  So it is not hard to understand the need for flexibility depending on your facility and your region in the U.S.  

But ironically, the industry has always known (putting the threat of the staff resignation issue aside) that the straight right thing to do, medically speaking, is clearly mandatory COVID-19 vaccinations to protect the health of our seniors. 

Hopefully the moving tide toward COVID-19 vaccination mandates will help to eviscerate the COVID-19 variants and get facilities through the winter.  

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.