Some long-term care facilities are requiring COVID-19 vaccines among staff, in a move that divides the industry and threatens to trigger legal challenges.
Vaccine uptake among long-term care workers remains low, as public health experts battle everything from conspiracy theories to the simple fears that come with a new shot. The issue could prompt legal disputes as employers contend with union agreements, state laws and the vaccines’ lack of full Food and Drug Administration approval.
A vaccine mandate also raises ethical issues. Distrust in the government is widespread among low-income communities of color, which make up a disproportionate share of the long-term care workforce. Undergoing a mandatory vaccination from whiter, wealthier bosses seems disrespectful of their historic marginalization, worker advocates say. Distrust among white staffers is also widespread.
“Our members deserve to be heard on why they’re hesitant, and there are many reasons for it that aren’t ridiculous,” said Lori Porter, CEO of the National Association of Health Care Assistants, which represents 26,000 certified nursing assistants, or CNAs.
National polls show that as many as 70 percent of long-term care staff are still wary of the vaccine, Porter said. Polling among NAHCA members is better, with about 50 percent of workers saying they’d take it.
“We are seeing that many CNAs are leaving the centers that are mandating, and frankly no nursing center in America today can afford to lose CNAs,” she said, adding that there are more than 170,000 openings for certified nursing assistants in skilled nursing facilities alone. The annual turnover rate stands at 120 percent.
Shanna Lacy, a 38-year-old nursing assistant at an Iowa nursing home, is opting out of the vaccine over concerns about unknown long-term effects, driven by the vaccine’s fast-tracked timeline coupled with her distrust in government.
“I don’t feel like any corporation or government or whoever should make somebody do something to their body that they don’t want to,” she told CQ Roll Call.
Lacy enjoys working at her facility and said she gets the flu vaccine every year. But she said the pandemic is not severe where she lives, and her belief in former President Donald Trump’s claims that he won the 2020 presidential election further undermines her trust in the government’s vaccine operation.
Lacy’s nursing home offers prize drawings to employees who take the vaccine, she said, while those who don’t are tested three days a week. She has not been told the facility would require her to take the vaccine, but if that happens, she said she would find work elsewhere, or maybe even leave the field.
“I could work at a McDonald’s flipping burgers, making the same amount and not being made to take this vaccine,” she said. “Do I want to work at McDonald’s? No, I don’t. But if I had to, I would.”
Mandates for other vaccines like the flu are common, but requiring a vaccine authorized on an emergency basis is new ground. The Atria Senior Living chain is requiring all 14,000 of its staffers to be vaccinated by May 1.
“We’re very strong in the belief that our residents deserve to live in a vaccinated environment, and our staff deserves to work in a vaccinated environment,” CEO John Moore told CQ Roll Call. “And it’s a privilege to have access to the vaccine early.”
Moore said the number of staffers who had quit since implementing the mandate was low. Staffers who ultimately refuse the vaccine will be let go, he said.
Other chains, like Juniper Communities, are also making the vaccine a condition of employment. Moore said he knows of a half-dozen others considering a mandate.
“No one wanted COVID. No one chose COVID,” he said. “There are no perfect answers. There’s only the next best answer, and that’s what we keep searching for.”
The Equal Employment Opportunity Commission issued guidance in December clearing COVID-19 vaccine mandates in accordance with laws like the Americans with Disabilities Act. But the statutory language on emergency use authorizations, which require less efficacy and safety data than a full approval, is less clear, said Dorit Reiss, a professor at University of California, Hastings College of the Law.
The law requires that recipients be informed of the right to refuse a vaccine under emergency authorizations, but also that they be informed of the consequences. Whether the consequences can include losing one’s job is unclear, Reiss said.
“If it goes to court, I think it’s a 50-50,” she told CQ Roll Call.
Considerations for mandating the vaccine in an elderly care setting are strong, but employers could expose themselves to tort and negligence claims if something goes wrong, said Robin Shea, a Constangy Brooks, Smith and Prophete partner.
“I would be concerned about that, and in a non-health care workplace, I would be thinking about that really hard before mandating it,” she said.
In Pennsylvania, a vaccine mandate in a nursing home operated by Bucks County sparked a union dispute. The American Federation of State, County and Municipal Employees filed a grievance with Neshaminy Manor, arguing that changes to employment terms are a bargaining issue under state law.
“I really feel as though this is something that can be worked out,” said AFSCME District Council 88 Director Tom Tosti. “The workers there in that manor — and across every nursing home facility and every facility, whether it has mental health patients or whatever — have been working tirelessly since this pandemic hit. And to turn around and say now you’re mandated to put something into your body or you’re getting terminated isn’t fair at all for what they’ve done this past year.”
Bucks County says the mandate is on solid legal footing, pointing to the toll the coronavirus takes on the elderly. The facility lost 86 patients to the virus.
“Any staff that has not been vaccinated by the end of March could be laid off,” the county said in a statement.
Most bargaining agreements give employers leeway to implement changes without bargaining through a management rights clause, Shea said.
“If it’s a very strong management rights clause, the employer may have the ability based on that. And, not taking into account any state laws, they may have the right to go ahead and mandate COVID vaccinations without bargaining first,” she said. “Otherwise, I would say they should probably try to bargain.”
Bargaining also does not guarantee a union victory. Disputes may be forced into arbitration, where the arbiter could rule in favor of the employer.
Education over mandates
Worker advocates want more education instead of mandates.
The emotions of the decision are often overlooked, said Pennsylvania COVID-19 task force member Joshua Uy, medical director at Renaissance Healthcare and Rehabilitation Center in Philadelphia. Explaining the mechanics of the vaccine doesn’t always erase fear. All of Renaissance’s residents were vaccinated, Uy said, compared with only 50 percent of its staff. Uy focuses on highlighting positive emotions that the vaccine can bring, such as ending isolation.
“I’ll try to remind them not to ignore what they’re feeling, but to sort of add other emotions, like this vaccine is hope,” he said.
Porter said NAHCA is considering a project to leverage the families of long-term care patients.
“CNAs don’t trust government. CNAs don’t trust their employers,” she said. “CNAs trust CNAs. Those two obstacles in the trust run deep.”
Relying on personal doctors, whom polling shows are a trusted source for many people, doesn’t always work. In Missouri, where NAHCA is based, many doctors weren’t wearing masks as recently as December, she said.
Porter also stresses that receiving priority for a vaccine with the potential to end a pandemic is an unprecedented industry victory.
“We continue to tell our members that this was a win for us,” she said. “Don’t let it be in vain.”