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Halt to Jab Mandate Gives Hospitals Breather—But Just a Bit

Dec. 7, 2021, 5:06 PM

Hospitals caught a break when the Biden administration’s order to vaccinate health-care staff was put on hold—but not enough to offset severe worries over staffing levels and rationing patient care.

A federal vaccine mandate for health-care workers threatened facilities that couldn’t afford to lose even one worker with the prospect that people would quit rather than succumb to a jab order.

Hospitals—already struggling with staff lost to sickness, burnout, and early retirement due to the Covid-19 pandemic—were days away from needing to meet Monday’s deadline for workers to get their first vaccination doses when two federal judges halted the requirement nationwide. That let hospital leaders step back—for now.

“Staffing concerns still exist” regardless of whether a hospital has imposed its own staff vaccination requirement, said Patti Davis, president of the Oklahoma Hospital Association. Still, for hospitals with a large percentage of workers reluctant to get the vaccine or threatening to quit, “This is a real sigh of relief.”

Mandate Misgivings

The Centers for Medicare & Medicaid Services’ requirement that health-care workers at facilities participating in Medicare and Medicaid are fully vaccinated would cover more than 17 million workers at about 76,000 health-care facilities, including hospitals and long-term care facilities. That includes workers who don’t come into contact with patients, such as cafeteria workers or cleaning staff.

Four separate lawsuits, filed by more than half of states, claim the CMS did not consider the impact the mandate would have on already-endemic staffing shortages.

With the mandate halted temporarily, health-care facilities can continue imposing the vaccination requirement on their own or freeze it. State laws may dictate which track employers take, with staffing remaining a top-of-mind concern.

It’s impossible to predict how many workers would leave if the nationwide rule is reinstated. Hospital systems and states that have their own vaccine requirements have seen mixed results. About 30% of health-care workers in more than 2,000 hospitals weren’t vaccinated as of mid-September, according to a recent analysis from the Centers for Disease Control and Prevention.

Some health-care staff resistant to vaccination could, ostensibly, flee to workplaces governed by less strict requirements, such as those covered by a large employer rule—also on hold—that offers a testing-or-vaccination option.

However, the mission-driven nature of the health-care industry may be a strong enough pull to make workers stay, said Nancy Foster, vice president for quality and patient safety for the American Hospital Association.

“We work in a culture in which everyone is a vital part of helping their communities,” Foster said.

CMS argues the mandate will help staffing, since workers would use less sick leave and the amount of people leaving their jobs could be balanced out by newcomers attracted to open positions.

Davis’ view is more dire. Some hospitals overwhelmed with Covid-19 patients would have no choice but to “discontinue some services” should the mandate resume, she said.

Regional Splits

Support for vaccination, in general, doesn’t always translate into support for a vaccination mandate.

In Arkansas, “lots of folks really don’t like to be told what to do and many times will make the right decision” on their own, said Jodiane Tritt, executive vice president of that state’s hospital association.

Scott Witlin, a partner at Barnes & Thornburg LLP who practices employment law, said some health-care workers may be caught off guard by mixed messaging.

At the start of the pandemic, health-care workers were “told that they were essential and that they needed to work at a time when we didn’t really fully understand the risks of the virus,” Witlin said. “Now, you’re telling them that they need to get a vaccine, otherwise, they’re dispensable.”

By educating people and giving them a choice, Witlin said, it’s possible to get a “pretty high compliance rate” with vaccination.

Ann-Marie Alameddin, president and CEO of the Arizona Hospital and Healthcare Association, said there’s an urgency, though, to get as many people vaccinated as possible, given the looming threat of the emergent omicron variant.

“This is a race against time” and vaccines are “the way we can get ahead of this,” Alameddin said.

“We know that having widespread vaccines administered in the community is how we’re going to ultimately put this pandemic behind us,” she said. Her organization has not taken an official stance on vaccine mandates.

Fed v. State

Some hospital leaders appreciated that the mandate standardized a web of different state policies and staved off debate about the efficacy of the vaccine.

“When the feds tell us that we have to do something,” especially when Medicare and Medicaid reimbursement is on the line, “we don’t even have to argue the merits of the vaccine anymore,” Tritt said. “We go into fix it mode.”

Others say, in the absence of further guidance from the courts, health-care facilities are holding tight.

“We still have crisis standards of care formally active across the state,” meaning hospitals must ration treatment based on who is most likely to survive, said Jared Kosin, president and CEO of the Alaska State Hospital and Nursing Home Association. “Everyone is just trying to figure out what to do.”

Shifting state and federal guidance also puts hospital leaders in an uncomfortable position. “No employer wants to look like they’re constantly changing their policies,” said Mary Mayhew, president and CEO of the Florida Hospital Association.

On the other hand, the temporary halt to the mandate has bought hospitals time to educate staff and prepare in the event the injunction is overturned, including by figuring out how to accommodate religious and medical exemptions.

Compliance “requires a tremendous amount of work,” Alameddin said.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Melissa B. Robinson at mrobinson@bloomberglaw.com

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