Heather R. Boshak

To vax or not to vax, that is the question. Or more precisely, if you’re an employer, to mandate employee vaccination or not. In a time when discussions of vaccinations are polarized, politicized and hotly debated, determining the best course of action is akin to navigating a minefield. This decision is even more challenging for employers who serve some of the most vulnerable in our society — those in need of long-term managed care.

Currently, the vaccination rate for nursing home residents is 80.9% while for staff it is only 58.7%. With this background and rising COVID-19 numbers due to the delta variant, many healthcare facilities are considering mandatory vaccination policies. In fact, nearly 60 major medical organizations recently issued a joint statement calling for all healthcare and long-term care employers to mandate vaccination. 

Are mandatory vaccination policies legal? 

The short answer: it depends. Under federal law, guidance from the U.S. Equal Employment Opportunity Commission supports mandatory vaccination policies, so long as the policies allow for reasonable accommodations for medical and religious reasons. Additionally, the policies must not discriminate against employees based on a protected class (e.g. race, sex, age, etc.).  

Employers also need to consider applicable state and local laws. At last check, there were 20 states with legislation or executive orders limiting the ability to require proof of vaccination in some fashion. In a unionized workforce, vaccination policies for existing employees are likely mandatory bargaining subjects, requiring notice and bargaining with the union.

Nicole D. Espin

In addition, several lawsuits have been filed challenging employer-mandated vaccination policies. Among other theories, the litigation has challenged the requirement on the basis that the U.S. Food and Drug Administration authorized the COVID-19 vaccine through the emergency use process (rather than through its ordinary, more lengthy approval process). This argument was rejected in a suit brought against Houston Methodist Hospital in Texas. The judge in that case dismissed the lawsuit and upheld the mandatory vaccination policy, emphasizing the importance of keeping vulnerable members of the community safe. 

Are mandatory vaccination policies good for employee relations?

While many medical facilities have instituted mandatory vaccination policies, there are still many who have not. A common reason cited for not instituting such a policy is the potential for damaging employee relations. With a tight labor market, employers are concerned that employees may flee in search of a job that does not require vaccination. Some employers are hesitant to mandate the vaccine given its emergency use authorization status. Other reasons cited include handling accommodation requests and possible legal challenges, as well as sensitivity to the political and community environment. Enforcing such a policy raises additional questions, including whether to terminate an employee who refuses, especially an otherwise excellent employee. 

Some employers are trying to avoid these concerns by instituting voluntary vaccination programs with various non-coercive incentives for vaccinated employees, such as gift cards, small bonuses or paid time off. Others are putting in a hybrid policy, such as in New York City where starting in August, employees in city-run hospitals must show proof of vaccination or be subject to weekly mandatory testing. 

Are mandatory vaccination policies good for customer relations?

Another consideration is customer relations. Many facilities experienced a drop in their census numbers after the height of COVID-19. Residents and their families are looking for some assurance that the facility is safe. Concerns include the risk of residents contracting COVID-19 from staff and the effect understaffing has on the quality of care provided when employees are absent after contracting or being exposed to the virus. Families are inquiring about vaccination and other safety policies when selecting a facility. Facilities have been advertising the percentage of vaccination of their staff to address this concern. 

Balancing act

A resurgence of the pandemic is a real threat to the health and safety of employees and residents of residential healthcare facilities. It also is a threat to the economic sustainability of such facilities, thus heightening the importance of maintaining a facility that reduces the risks of spreading COVID-19. In the absence of a prohibition by state or local law, a mandatory vaccination policy may be the right course of treatment for a lagging vaccination rate to balance a safe and stable workforce and comfort to residents and their families. 

Heather R. Boshak is a partner in the labor and employment department at Fox Rothschild LLP.

Nicole D. Espin is an associate in the labor and employment department at Fox Rothschild LLP. 

Special thanks to Krista Hartrum, a summer associate with Fox Rothschild LLP, who will be starting her third year of law school at Rutgers University School of Law.  

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.