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Hospitals Put Off Jab Requirement for Staff as Rule Draws Near

Nov. 1, 2021, 9:20 AM

The number of hospitals mandating the Covid-19 vaccine for their workers has leveled off since the Biden administration announced all health-care workers at facilities paid by Medicare and Medicaid would need to get the jab.

Hospitals have been trailblazers for mandating vaccines in the workplace, requiring the shot for their staff well in advance of state and federal orders.

Health-care workers are at higher risk of getting and transmitting the coronavirus, and vaccine mandates have been one of several tools some hospitals have implemented to keep their staff safe.

Houston Methodist was one of the first health systems to announce a vaccine mandate in April, sparking two lawsuits from employees that reinforced their legality. Hospital vaccine mandates went from a few dozen to a few thousand in August, following the Texas court’s dismissal of the suit, the full FDA approval of a vaccine, and the delta variant surge.

But since then, new mandates have since stagnated to 42% of hospitals, according to the American Hospital Association. Hospitals, in the absence of forthcoming guidance from the Centers for Medicare & Medicaid Services, no longer want to jump ahead with their own requirements, said AHA Vice President for Quality and Patient Safety Policy Nancy Foster.

“The announcement that the rule is coming may have had a chilling effect on people taking action,” Foster said.

After the Biden administration’s announcement, the CMS encouraged unvaccinated health-care workers to “begin the process immediately.” The agency’s rule is being reviewed by the White House. The timeline hospitals will have to implement mandates once the rule comes out remains to be seen.

Many hospitals are still drowning in Covid-19 patients and a backlog of patients with other illnesses. “They don’t want to act in a way that they may have to alter a few weeks later,” Foster said. “They want one consistent message, and one consistent approach with their staff.”

Guidance Looms

The Office of Management and Budget recognizes that “there’s a particular need to get it right from the beginning,” Foster said following a meeting with the regulatory office.

The CMS rule (RIN 0938-AU75) is going through a shortened process in light of the public health emergency. It will take effect immediately once it’s published in the Federal Register. Usually, an agency would propose a rule, the Office of Management and Budget would invite public comment, and the agency would incorporate feedback in a final rule.

The AHA would like the rule to clarify whether it supersedes a forthcoming vaccine mandate rule for large employers being developed by the Labor Department’s Occupational Safety and Health Administration. “Hospitals need clarity and simplicity,” and the CMS rule is “better fitted to the health-care setting,” Foster said.

The association has also asked the CMS for clarity on whether the agency’s rule will override state legislation surrounding vaccine mandates. “Don’t make the hospitals figure it out. You tell us what is what,” Foster said.

Foster said she expects the CMS’s rule to accommodate religious exemptions, which have become a divisive issue in court.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Ripple Effect

“What we really want as an organization is for the vast majority of health-care workers to be vaccinated,” Foster said.

The rule could reduce absenteeism for staff members, limiting the need for health-care workers to quarantine if they were exposed to the virus.

But it will likely also exacerbate staffing shortages that are already reducing access to care, Foster said. “There may be parts of the country where a larger portion of the staff chooses not to get the vaccine, and that will create real problems,” Foster 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