Norris Cunningham

With the federal Pharmacy Partnership for Long-Term Care Program now complete, responsibility for COVID-19 vaccinations of new residents and staff has shifted to the long-term care facilities themselves.  This leaves operators with the dilemma of whether to mandate employee vaccinations.  

First, all long-term care providers are presented with the question of whether to mandate covid-19 vaccines for their employees. While grappling with this decision, facilities can rest assured that this decision is legal.  

Certainly, social distancing between direct care staff and residents is simply not possible as staff assist residents with transfers, bathing, and toileting, among many other needs. Moreover, even with many residents opting to become vaccinated, they are still at risk of complications if they become infected.  

Accordingly, mandatory vaccination for those caring for a vulnerable population appears to make sense on its face. But there are many things to consider before making such a decision.

Even with a vaccine mandate, facilities must provide religious and health-related exemptions under the law, which will lead to less than 100% participation. Once a facility is on notice that an employee’s religious belief prevents them from getting the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship (42 U.S.C. § 12111(10)(A)) 

Further, a vaccine mandate may cause an issue for employees with a disability. If an employee with a disability cannot get the vaccine, the facility would have to show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” (29 C.F.R. 1630.2(r))

In this scenario, the facility cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation. In either scenario, management would need to determine whether accommodations can be made for the employee, such as working remotely, not providing direct patient care or taking Family and Medical Leave. The EEOC has issued lots of guidance on vaccinations in the workplace.

Mandate or incentivize?

Angela Rinehart

Mandatory vaccination also carries with it an increased risk of staff shortages. Companies who have already done so have seen immediate staff terminations as a result. 

Various studies have shown that roughly half of long-term staff in the U.S. have been vaccinated, and in some states, it’s a much smaller percentage. The reasons for this low statistic are what you would anticipate: fear of the unknown and lack of information.

In addition, many wonder if it is unwise to mandate vaccination during an emergency use authorization. While the COVID-19 vaccine has been rigorously tested, the EUA is a mechanism to streamline its availability during public health emergencies. Some legal scholars believe that mandates during an EUA could bring legal challenges, and they advise waiting for full FDA approval.  

If opting against mandatory vaccination, facilities still have to decide how to best go about encouraging employees to get vaccinated. Infected staff members were one of the greatest drivers of the COVID-19 outbreaks in long-term care at the outset of the pandemic. Outbreaks not only lead to infections of residents but also to staff shortages. To avoid these issues without a mandate, facilities should consider providing incentives.

Some have suggested that facilities use payment incentives. For an already overworked, and seemingly unappreciated, workforce, it certainly seems justified to give a few dollars to an employee who has been a frontline health care hero throughout this time. Yet, others say that payment incentives pose an ethical issue while validating unfounded fear of the vaccine.

If payment incentives are not an option, offering personal time off appears to be a strong incentive. In addition, facilities could prioritize letting those who have been vaccinated pick up extra shifts or give them scheduling preferences. Other options include gift cards or free meal vouchers in exchange for signing up for the vaccine.

For now, most employers appear to favor a voluntary approach to vaccination, even in long-term care. That said, management needs to be prepared for how to handle employees who opt out.

Administrators still need to worry about transmission inside the facility, and the key is in the messaging. Many long-term care employees cited the lack of trust of corporate owners telling them to get vaccinated. If administrators and directors of nursing lead by example and listen to employees’ concerns, they are likely to be better received as they are in the trenches with the staff.

In addition, messaging needs to target staff demographics of each particular facility. Administrators and directors of nursing should take the time to answer staff questions, combat disinformation, help workers access vaccines through mobile and pop-up clinics, and perhaps provide transportation.

Ultimately, all CDC, federal and state laws and guidelines need to be followed at each facility. However, safety will ultimately come only from the protections afforded by the various COVID-19 vaccines. The greater the number of vaccinated staff, the greater the protection for our vulnerable population.  All options must be explored to get our healthcare heroes to take the vaccine.    

Norris Cunningham is a founding shareholder and leads the Health Care Practice Group at Katz Korin Cunningham PC (KKC) in Indianapolis. Contact him at [email protected] Angela Rinehart is an associate attorney in the Health Care Practice Group  at KKC and focuses her practice on the defense of long-term care providers. Contact her at [email protected]