Stefanie Doyle
Stefanie Doyle
Stefanie Doyle
Stefanie Doyle

The new federal vaccine mandate for nursing home staff, expected to be issued later this month, will apply to nearly 15,000 nursing home facilities, which employ approximately 1.6 million workers and serve approximately 1.3 million residents. 

The new policy is designed to address vaccine hesitancy among nursing home staff and decrease the number of outbreaks among residents. According to federal data, about 60% of nursing home staff nationally are currently vaccinated against COVID-19, with vaccinations ranging among the states from a low of 44% to a high of 88%. 

By comparison, 82.4% of nursing home residents have been vaccinated against the virus. Cases among nursing home residents have surged from a low of 319 cases to 2,696 cases in the six weeks between June 27, 2021 and August 8, 2021.

The federal policy is in line with policies recently adopted by some states in Baker Donelson’s footprint. For example, on August 18, 2021, at the direction of Governor Larry Hogan, the Maryland Department of Health issued a mandate that all of the state’s nursing home and hospital employees must show proof of a first dose of a two-dose vaccine regimen or a single dose of a one-dose vaccine regimen by September 1, 2021, or risk administrative and criminal sanctions. 

On August 16, 2021, the District of Columbia’s Executive Branch announced that all healthcare workers in the District must receive at least the first dose or a single dose by September 30, 2021. The Maryland and District of Columbia mandates make exceptions for those with medical conditions or sincerely held religious beliefs, and the anticipated federal regulation will likely have similar exemptions to comply with Title VII of the Civil Rights Act and the Americans with Disability Act.

What should Medicare- and Medicaid-participating nursing homes do now?

1. Monitor for additional announcements regarding the proposed regulation and be prepared to provide public comment.

The Biden administration directed the Department of Health and Human Services to issue an emergency regulation that would turn the policy into law.  Upon publication, there will be an open public comment period during which interested stakeholders will be allowed to provide HHS with their feedback regarding all aspects of the published regulation, including its requirements, penalties, and expected impacts.  All interested stakeholders should monitor the Federal Register daily for the publication of the emergency regulation and be prepared to promptly submit written comments, if desired.

2. Strongly encourage all employees to get vaccinated voluntarily while considering implementing a mandatory vaccination policy irrespective of the anticipated regulation.

Jennifer G. Hall
Jennifer G. Hall

Employers who do not wish to mandate the vaccine can consider implementing policies that enact consequences for unvaccinated employees.  Examples include offering additional paid leave to vaccinated employees to use if they become sick with COVID-19; restricting unvaccinated employees from eligibility for promotions and raises; and requiring unvaccinated employees to undergo regular testing on a more rigorous schedule.

There are some major caveats to consider if implementing these types of policies.

  • You must exempt employees with a medical condition or sincerely held religious beliefs who cannot get vaccinated.  Those exempted employees typically should be treated like vaccinated employees (except in the case where regular testing is required of unvaccinated employees).
  • Changes in leave policies that impact an unvaccinated employee’s access to paid sick leave must still comply with state and/or local paid sick leave law.  
  • If your workforce operates under a collective bargaining agreement, consider any obligations you may have to work with the union or to meet the terms of that agreement before restricting unvaccinated employees from certain benefits.
  • Any policy implemented as a “penalty” should be in writing and distributed to employees, allowing adequate time for them to get vaccinated, thereby avoiding the penalty.

With the FDA’s full approval of the Pfizer vaccine and approvals for booster shots, employers have significant power to ensure employees are vaccinated.  Whether through a mandate or other policies that “encourage” vaccination, the law lends employers a great deal of weight and support.  As this pandemic’s latest surge continues to wreak havoc on countless lives and businesses, that support is highly likely to increase.

3. Review any Collective Bargaining Agreements (CBAs) to understand unionized employee rights and employer obligations.

CBAs will determine what an employer can and cannot do with regard to unionized employees.  For example, most CBAs set the amount of sick and paid time off for union employees.  And, similarly, most CBAs place the burden on the employer to make every reasonable effort to provide safe and healthy work conditions.  Some even require a Safety Committee.  As such, decisions about safe and healthy work conditions, including mandating vaccinations may have to be presented to the Safety Committee.

4. Host employee education and vaccination clinics on-site to garner employee participation.

On-site employee vaccine education and administration clinics have proven to be an effective way to overcome vaccine hesitancy and increase the vaccination rate in the workplace.  We recommend reviewing and/or seeking guidance to discern your state’s requirements and limitations regarding who can administer a vaccination in the workplace and under which circumstances.  Continue all COVID-19 mitigation measures in the workplace.

We strongly recommend nursing homes continue to stay abreast of and follow the Centers for Disease Control and Prevention’s evolving guidance regarding infection control, the use of personal protective equipment, and the types of precautions that must be taken to protect their residents and your staff.  Vaccine hesitancy is a serious concern that leaves providers and their residents open to infection.  In the absence of higher vaccination rates among all, nursing home providers must remain vigilant to protect both their residents and themselves.

Stefanie Doyle is an Associate in the Health Law Group at Baker Donelson and focuses her practice on the representation of clients in the long-term care industry in regulatory and fraud and abuse issues.  She also has an extensive background in public health and public policy.  Contact her at [email protected].

Jennifer G. Hall is a shareholder in the Labor & Employment Group at Baker Donelson and frequently represents employers before the Equal Employment Opportunity Commission, Department of Labor. and in federal and state courts. Contact her at [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.