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Covid Vaccine Mandates at Hospitals to Soar on Pfizer Approval

Aug. 24, 2021, 5:02 PM

Covid-19 vaccination mandates for health-care workers will take off now that the FDA has fully approved a vaccine, Pfizer Inc. and BioNTech SE’s, hospital leaders say.

Vaccine mandates were already expected to “spread like wildfire” before the Food and Drug Administration’s approval as hospitals and states gained confidence in their legality, said Steven Michaud, president of the Maine Hospital Association. The approval will make hospital leaders more comfortable requiring the shot for their staffs, protecting patients and the workforce as infections surge from the delta variant.

Roughly 35% of hospitals currently mandate vaccination for their staffs, according to the American Hospital Association. The number of hospitals with vaccine mandates has gone from a couple dozen to a couple thousand in a few weeks, said Nancy Foster, AHA’s vice president for quality and patient safety policy.

A few of their requirements were contingent on full FDA approval of a Covid-19 vaccine. Until Monday, Pfizer’s vaccine, along with the other shots available in the U.S. from Moderna Inc. and Johnson & Johnson, only had emergency use authorization, which expires when the pandemic is over. Some workers opposed getting a vaccine that only had an EUA and not full FDA approval. The approval will likely motivate many of the hospitals that have been reluctant to mandate the shot.

The approval is “an exclamation point on what we’ve all been saying—that this vaccine is safe and effective,” said Marc Boom, the president and CEO of Houston Methodist, which faced protests and litigation when it became one of the first large health systems to introduce a mandate.

VIDEO: We answer the question on the minds of CEOs, in-house lawyers, and rank and file employees - can employers make their employees take the vaccine?

‘The Obvious Answer’

Universities and health-care facilities have led the way in mandating Covid-19 vaccination, coupled with federal and state orders affecting the nursing home industry and other workers.

“We are in the business of caring for people,” Boom said. Doctors are sworn to “put the patient at the center of everything we do,” he said. “From that springs the obvious answer that we must mandate vaccines.”

These mandates should only happen after hospitals educate their staffs about the risks and benefits of the shot so that employees don’t “view a vaccine mandate as coming out of nowhere,” said Akin Demehin, director of policy for the AHA.

Some states and employers have opted for soft requirements, which give employees the option to decline vaccination but wear a mask and get tested regularly. These mandates can be attractive but expensive for employers that fear staffing shortages or litigation from their employees.

Other states have more strict requirements that employees can only get around with a religious or medical exemption. The mandates range from covering all health-care workers to certain types, like those at long-term care facilities.

California, Connecticut, the District of Columbia, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, and Washington all require vaccines for a subset of, or the entire health-care worker population.

Statewide mandates allow governors, rather than employers, to take any potential heat from opponents to the ordinances. They also prevent workers from “jumping employers” to facilities that don’t have a mandate, Michaud said.

Disruption

Houston Methodist’s 26,000 employees were one of the first groups of health-system workers in the nation told to get the shot or get fired, according to the health system.

“It was a little lonely out there,” Boom said. Mandating the vaccine was “frankly a fairly obvious and highly necessary decision.”

The hospital’s mandate sparked two lawsuits that hospitals have been watching as they weigh whether a mandate is worth it for their workers.

A federal judge dismissed the first lawsuit filed by employees who refused to get the shot. Houston Methodist lost 153 employees from the mandate due to resignations and firings. The second lawsuit was filed Aug. 16 and is awaiting a response in court from the health system.

Even with some security from the court decision, hospitals may still be wary that mandates could hurt staffing in an industry that is already being pushed to its limit by the pandemic.

Protesters in Maine condemned Gov. Janet Mills’ vaccine mandate, arguing that whether they get a shot should be a personal choice.

“The more serious issue for us is whatever this percentage of the workforce is that appears to be willing to leave,” Michaud said. Workers in Maine don’t need to be fully vaccinated until Oct. 1, so Michaud said hospitals are still unsure how many employees will walk.

The smaller the hospital, the more troublesome resignations can be. “There will be an impact, and it may cause disruption of service, there’s no question,” Michaud said.

Houston Methodist, one of the few hospitals that has already completed its mandate, experienced the opposite: The benefit of fewer sick workers far outweighed the disruption from the small percentage of staff that left.

“It was the right thing to do on every metric,” Boom said.

Rising Confidence

Houston Methodist’s success in getting the first mandate lawsuit dismissed “certainly made hospitals a bit more confident that the steps they might take would be supported by the court,” Foster said.

Stances on vaccine mandates vary among labor unions that represent health-care workers.

“We don’t like mandates,” said Doug Placa, executive director of the Jersey Nurses Economic Security Organization. The union represents 5,000 workers. But “to litigate the mandate, we would be put in a difficult position,” because of the Houston Methodist court decision.

The National Union of Healthcare Workers supports the mandate and, like JNESO, is working on bargaining to ensure employers support their workers with paid time off if they experience side effects, said the union’s president, Sal Rosselli. The union, based in California, represents 15,000 members, including medical technicians, pharmacists, nurses, and mental health clinicians.

Requiring the shot is “the only way that we’re going to get control of this pandemic,” Rosselli 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; Karl Hardy at khardy@bloomberglaw.com

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