A recent article in the Doylestown Patch detailed that Neshaminy Manor, a Bucks County, Pennsylvania nursing home, announced they will require all staff to accept the COVID-19 vaccination. Those staff that choose not to vaccinate risk losing their jobs. This naturally leads to the question – Can a nursing home require vaccination of staff as a condition of continued employment? Can any employer? The answer is rather murky.
Generally, if failure to vaccinate puts other employees, clients, or the public at risk of infection, then employers may require vaccination as a condition of an employee’s return to work. This is particularly true of COVID-19 because of its rampancy and ease of transmission.
The Equal Employment Opportunity Employment Commission (EEOC), a Federal government agency that oversees employee treatment by employers, labels COVID-19 a direct threat. Thus, it appears employers mandating vaccination is acceptable. While exemptions remain for religious or medical reasons, absent a legitimate excuse, it appears an employer can terminate an employee for refusal to vaccinate.
While employers, particularly long-term care providers, may require staff to be vaccinated, I believe there are larger, more practical considerations at hand. Mandating vaccination as a condition of continued employment may have an overall positive or overall negative effect on the staff. According to a recent article in the New York Times, the National Association of Health Care Assistance conducted a survey showing over 70% of certified nursing assistants working in long-term care facilities did not want the vaccine.
The long-term care provider should consider the possible need to triage vaccine recipients when employees outnumber available doses. Are temporary workers treated the same as full-time employees? Who receives priority? Who decides on priority? How is a facility to plan for staffing shortages resulting from vaccine side-effects preventing staff from working immediately following inoculation? It is also possible that mandating vaccination could lead to staff quitting their jobs in favor of positions not requiring vaccination. This during a time when caregivers are increasingly in demand.
A Raleigh News & Observer article discussed the vaccination campaigns and its haunting by the history of the Tuskegee Experiment, in which African Americans were unknowingly subject to medical experiments related to syphilis. Some African American communities remain reticent to trust the government in this respect and, as a result, are reluctant to accept vaccination. A mandate could drive these employees to leave their positions in favor of others not requiring vaccination. The ripple effects of a mandate could create a more positive, stable environment for employees, or could destabilize a community, possibly jeopardizing quality of care.
In addition to the employees, long-term care facilities will also need to contend with the concern of residents and their families. A recent survey conducted by Sunrise Senior Living found nearly 80% of residents are willing to accept vaccination. However, obtaining informed consent may present a challenge, particularly for residents who have dementia. While states may have informed consent requirements for vaccination, according to the CDC, informed consent is not a federal legal requirement for vaccination, although it is often needed for billing reasons. Obtaining consent may necessitate lengthy communication with family members or surrogate decision-makers, further stressing an already weakened long-term care system.
Each long-term care community should consider these above issues when establishing a COVID-19 staff vaccination policy. These issues will certainly be debated in the coming months as it appears, increasingly so, that mass-vaccination is the fastest way to end this pandemic.
