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Vaccine mandates in flux: Employers wary of legal ramifications use education instead of requirements

April 23, 2021 Updated Sat., May 15, 2021 at 1:30 a.m.

Travis Albo, a pharmacist with Omnicare, gives Wallace McGregor his second dose of the COVID-19 vaccine on Feb. 1 during a mass vaccination at the Fairwinds Retirement Community in Spokane.  (COLIN MULVANY/THE SPOKESMAN-REVIEW)
Travis Albo, a pharmacist with Omnicare, gives Wallace McGregor his second dose of the COVID-19 vaccine on Feb. 1 during a mass vaccination at the Fairwinds Retirement Community in Spokane. (COLIN MULVANY/THE SPOKESMAN-REVIEW) Buy this photo

While vaccines are the only way out of the pandemic, employers in Washington state are hesitant to require the shots, including in long-term care settings, where nearly 50% of the state’s deaths from COVID-19 occurred.

This is due, in part, to the mixed signals coming from federal and state agencies, and no one wanting to jump first and potentially invite legal action.

Employers have found themselves in a bind: wanting fully vaccinated workers but feeling unable or unwilling to mandate it. Instead, companies have opted for intensive education campaigns, offering multiple vaccine clinics in some cases, and considering incentives to encourage employees to get vaccinated.

In Spokane County, some businesses are considering incentives, like a complimentary sick day for employees to rest after each shot, or a stipend or bonus for getting vaccinated, said Alisha Benson, CEO of Greater Spokane Inc. Benson, however, is not aware of any local businesses requiring their employees to get the vaccines.

Despite not being required, Benson stressed the importance of everyone getting their vaccine to help the local business community and county get past the pandemic.

“Our economy and recovery is directly tied to our ability to be vaccinated in the county,” Benson said.

Some state agencies and health care providers say they cannot require their employees to receive the COVID-19 vaccine because they are only approved for emergency use by the Food and Drug Administration.

Each emergency use authorization fact sheet for the Pfizer-BioNTech, Moderna and Johnson & Johnson vaccines says “the recipient or their caregiver has the option to accept or refuse” the vaccine. While this language does not explicitly prohibit a mandate, it calls one into question.

Some health care providers and members on the Advisory Committee for Immunization Practices have interpreted this language to mean that no one can be required to receive it, as reported by STAT News in February.

The Washington Department of Social and Health Services, which licenses long-term care facilities statewide, cannot mandate vaccines that are under emergency use authorization.

“Since the vaccine is under emergency use authorization, the state has no legal standing to mandate its use by long-term care workers,” Chris Wright, spokesman at DSHS, said in an email.

Other agencies, including the Washington Department of Health and the U.S. Equal Employment Opportunity Commission, believe employers can require the vaccines, granted providing federal employment laws are followed.

“I think employers can do it now,” said Jane Korn, a law professor at Gonzaga University.

“Now, people may differ on this, and I don’t think it’s crystal clear, but because it’s such a pandemic and we need to stop it, I think there’s a strong argument that, where necessary, employers can mandate it – which is not the same as saying they should mandate it.”

The EEOC guidance for requiring COVID-19 vaccines says employers must follow the Americans with Disabilities Act, as well as Civil Rights laws, in what questions employees are asked and what exemptions are allowed. Exemptions due to religion or disability are allowed, but if a determination is made that the employer can’t safely accommodate an employee who doesn’t get vaccinated, the employer is allowed to take action.

“If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace,” the EEOC guidance says.

“This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

For employers hoping that federal or state agencies could step in to require vaccines, there is a reluctance or inability to do so at the state and federal levels.

The FDA cannot mandate vaccines. While states can, Washington doesn’t.

The governor’s office has not done a complete analysis on requiring vaccines in Washington state. It is not something Gov. Jay Inslee is considering, according to Mike Falk, his deputy communications director.

The Department of Health noted that employers may choose to require shots.

The “emergency use” status on some COVID-19 vaccines might change in the coming months if Pfizer and Moderna apply for a biologics license application, which would begin the process of being officially approved by the FDA.

For departments or employers skittish about requiring an “emergency use” vaccine, a fully approved vaccine might be easier to require.

Required vaccinations are not a new concept.

Children must receive multiple vaccines to attend child care or public school in Washington.

Some health care organizations require their providers to be up to date on adult immunizations and annual flu shots. Before traveling to certain countries, the Centers for Disease Control and Prevention recommends several vaccines, depending on the country, and some countries require vaccines for people to enter.

While there are no state laws in Washington requiring vaccines for health care providers and patients, some residents already are feeling the consequences of no vaccine mandates.

Concerns about ‘legal ramifications’ in long-term care settingsThe virus hit long-term care settings – from adult family homes to skilled nursing centers – hard.

For this reason, these facilities were first in line to receive vaccine doses through a federal program with Walgreens and CVS pharmacies in December and January .

A CDC analysis of vaccine uptake from December to January in skilled nursing facilities participating in the federal program found that among 11,376 facilities, a median of 78% of residents got vaccinated through the program, while a median of 38% of staff members were vaccinated through the same program.

Since then, facilities have held additional clinics aimed at vaccinating staff. Rough estimates of statewide vaccination rates indicate about 60% of these workers have received the shots, according to DSHS.

“I do think there are some employers who want to require it, but they are concerned about the legal ramifications,” said Patricia Hunter, Washington State’s long-term care ombuds.

There are other things to consider. Retaining and recruiting staff to work in long-term care settings is not easy, which could make some facilities hesitant to require vaccines.

“What I’ve heard is that well, ‘We don’t have much of a workforce right now, and if you require it, you might lose some people,’ ” Hunter said.

Unvaccinated employees could have consequences for residents of these facilities.

The CDC studied an outbreak at a skilled nursing facility in Kentucky. After one unvaccinated, symptomatic health care provider tested positive, 26 residents and 19 other staff members also tested positive.

Illnesses were most severe among unvaccinated residents, with four of them hospitalized and two dying as a result of the outbreak. The outbreak was connected to a newly detected variant in Kentucky, but also underscored the potential risk long-term care settings continue to have.

“Low acceptance of vaccination among (skilled nursing facility providers) might increase the likelihood of SARS-CoV-2 introduction and transmission within a facility,” the CDC report on the Kentucky outbreak says.

Hunter formed a resident advisory group from around the state to hear feedback, and facilities are concerned about staff not getting vaccinated.

This is because even if residents have been vaccinated, a new positive COVID-19 case detected inside could mean mandatory quarantine.

“If you really want to limit transmission, then require caretakers to get vaccinated – that is where the risk is and has been,” Hunter said.

Hunter, whose job it is to advocate for residents in long-term care settings, said staff at facilities and hospitals who are in close contact with residents should be vaccinated unless they have medical or religious reasons not to do so.

“It’s the only fair way for people to live in their homes fully and not be subject to having their lives restricted and having a sort of a consistent life,” she said.

“So today you have your freedom, tomorrow you don’t because someone showed up at work who tested positive today who is unvaccinated.”

The ethics of mandatesBut with everyone hoping others will jump first on a vaccine mandate, the pandemic rages on. Young adults in the state are spreading variants rapidly, and hospitalizations are increasing. Subsequently, vaccine excitement also seems to be fading as hesitancy concerns surface.

Washington has entered its fourth wave of virus activity, bringing with it multiple variants that can spread more effectively. While vaccination rates continue to go up, they are not outpacing virus transmission.

Even if mandates go into effect, exemptions will be granted, likely to people with religious or medical reasons for avoiding the vaccine.

Individual rights are at odds with the larger community’s public health when it comes to vaccine mandates. Gonzaga professor and ethicist Maria Howard explains the phenomenon using a hypothetical. If she had cardiovascular disease and chose to not get it treated, that would be her individual choice.

“So the disease might kill me, but that’s a choice I make,” she said.

“But with vaccinations, that’s not an individual choice in fundamental ways because the impact is dramatic on the community at large.”

This has been seen in the United States even in recent years. Measles was eradicated from the United States in 2000, but in the decades that followed, outbreaks have been recorded around the country, including in Washington, leading the state to impose stricter vaccine requirements for school-aged children.

Howard sees the response to the COVID-19 vaccines as a reflection on who the pandemic has most impacted: the elderly and most vulnerable community members with underlying health conditions.

“If this disease had been like the Spanish flu that targeted the young and healthy and killed them at the rates it did, we would be having a very different conversation – and it would be one of national pride and about protecting those around you,” she said.

Instead, with only a third of Spokane County residents receiving at least one dose of a vaccine, hundreds of appointments have been left open in recent weeks.

Ultimately, the debate over mandates and whether employers will require a COVID-19 vaccine boils down to those around you.

“My choice to get vaccinated or not isn’t just about myself; it’s about everyone I come into contact with,” Howard said. “And if I have a job that requires me to interact with individuals at risk, it makes sense as a condition of my employment to take a vaccine that has an effective and safe track record.”

Arielle Dreher's reporting for The Spokesman-Review is primarily funded by the Smith-Barbieri Progressive Fund, with additional support from Report for America and members of the Spokane community. These stories can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.

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