Starting Saturday, nursing homes across the US will no longer be able to require their workers to receive COVID-19 vaccines with the backing of a federal mandate.

While the end of the nationwide healthcare worker requirement comes as good news to many who saw it as an obstacle to hiring during a crippling labor shortage, experts are warning that the policy’s end could lead to new and potentially costly concerns.

The Centers for Medicare & Medicaid Services has told surveyors not to enforce the vaccination requirement since June 5, but the government’s hard-won mandate officially expires this weekend. Given the nation’s still-divided take on COVID shots — and a bevy of new state laws that prohibit employers from mandating vaccination as a condition of employment — keeping staff up-to-date could be a challenge in many places.

The stakes remain high, with CMS tracking the percentage of up-to-date staff through its Quality Reporting Program and continuing to post related data on Care Compare. If numbers sag, regulatory experts predict new rules could come into play.

And in the meantime, consumer attorneys will no doubt be watching too.

“If you have a really low vaccination rate and you have an outbreak among patients, and let’s think of the worst — a situation in which you have residents die as a result of COVID-19 — I do think the plaintiffs’ bar is going to come back and potentially allege that the nursing home was negligent in their practices and procedures and their negligence resulted in the death of these residents,” predicted Erin McLaughlin, an attorney and shareholder for Buchanan Ingersoll & Rooney who specializes in healthcare labor and employment.

The lifting of the mandate, she added, is a double-edged sword for nursing homes and other healthcare providers.

“On one hand, the staff has been pushing back as to whether or not they want to be vaccinated based on religious beliefs and disability status,” McLaughlin told McKnight’s Long-Term Care News. “But at the same time, these nursing homes have the obligation to protect those patients. And if they are enacting policies and procedures that can be challenged as not adequately protecting patients …. I do think a creative plaintiff’s attorney might make that claim.”

Tougher to adopt internal mandates

Some states have hamstrung providers from keeping their own rules in place, with 26 limiting vaccine mandates by public entities and 11 limiting any such requirements by private businesses, according to a National Association for State Health Policy tracker last updated June 30. In Texas and Utah, for instance, all entities must exempt vaccination for individuals for almost any reason, including personal conscience or beliefs.

And given the competitive landscape of the current healthcare hiring environment, providers who do enact an internal mandate even in vaccine-friendly states may find themselves at a recruiting disadvantage.

Few if any major nursing home organizations have announced their intentions to adhere to a strict requirement moving forward. Experts have said it’s more likely providers will have to attempt to get employees vaccinated as they did pre-mandate, most likely by using educational campaigns and, potentially, incentives.

Genesis Healthcare, one of the nation’s largest owner/operators, adopted a voluntary vaccination program in December 2020, relying on “communication, engagement and trust-building” to push rates to 65% among staff. The following summer, Genesis announced its worker mandate, which was then made redundant by the federal mandate when the Supreme Court cleared that to stand in January 2022.

After reviewing company policies and state regulations, Genesis is keeping up strict requirements in the few states that still have mandates. But in other states, it hopes the incentive of working mask-free is enough to entice new hires to get their shots.

Spokeswoman Lori Mayer said the company was leaning on an existing universal influenza vaccination policy to help shape its new COVID vaccine strategies in states without blanket healthcare mandates.

“All personnel who work in patient/resident buildings, or whose job requires them to routinely be in a building where patient care is provided, are required to be immunized against COVID-19,” she told McKnight’s in an email Wednesday. “If the staff member has never received any COVID-19 vaccine, they will be required to wear a: well-fitted surgical mask if the county hospital admission level is low and/or there is no center COVID-19 outbreak; or N95 respirator if the county hospital admission level is high and/or there is a center COVID-19 outbreak.” 

In New York, ArchCare is relying on continuous education to promote vaccination of new staff, of which there are many.

“As of May 23rd it is no longer a condition of employment and we haven’t experienced any adverse effects, while at the same time have approximately doubled our hiring in our nursing homes of direct caregivers during those same months,” Jason Hutchens, senior vice president of residential services told McKnight’s Thursday.

“The increased hiring is due to high occupancy and a renewed hiring approach to replace slots previously filled by agency,” he said. “Our approach for current care members has been continuous education regarding vaccines provided by our infectious disease medical director, CMO and center level infection prevention nurses. We have offered incentives to team members and have monitored progress closely as an executive team.”

Low-hanging fruit for plaintiffs’ bar?

Some patient advocacy groups, including AARP, have raised concerns that the mandate has been lifted too soon, especially given that comparatively few nursing home staff members have received boosters — which have remained voluntary throughout the pandemic.

While the requirement for an initial series of shots pushed staff coverage to above 89%, just 26% of nursing home workers were considered up-to-date as of July 16, the date of the most recent CMS data available. By comparison, 63.5% of residents were up-to-date then.

If that sagging staff vaccination rate persists or falls in coming months, especially if combined with a new variant that causes a resurgence of severe COVID cases, CMS could reconsider revoking its rule, McLaughlin told McKnight’s on a podcast earlier this summer.

But even if things don’t get that bad nationally, low staff vaccination rates could be bad news for individual providers whose residents get sick, warns Florida-based attorney Donna Fudge, a member of Nationwide Insurance Company’s National COVID-19 Defense Counsel.

“I believe the plaintiff’s bar will use this as another weapon in their arsenal to sue nursing homes that are complying with guidance and laws set out by the federal government and its agencies,” Fudge told McKnight’s. She noted that providers could face court time and high defense costs even though they are following provided rules, akin to concerns about how courts have handled liability claims the government sought to protect them from.

“Now that COVID-19 is considered endemic, it seems logical to drop the vaccine mandate,” she added. “COVID-19 has been, is now, and will be impossible to prevent in long-term care settings. The plaintiff’s bar will continue to exploit this as another reason to sue the long-term care providers, who work tirelessly providing good care to this county’s most vulnerable residents.”