The COVID-19 pandemic has forced health care employers across the country to contemplate vaccine mandates for their employees. Brian Dean Abramson, author of Vaccine, Vaccination, and Immunization Law, speaks to Denise M. Hill, Associate Professor of Practice in Public Administration at Drake University and author of AHLA's recent publication, Vaccine Mandates in the Health Care Workplace: A Legal Analysis for Employers, about the factors employers should consider when deciding whether to implement vaccine mandates at their workplaces. They discuss how to structure a vaccine mandate that accounts for employees who don’t want to be vaccinated, the impact of recent case law and state actions, and ways to engage with vaccine hesitancy.
Watch the full conversation here.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
The COVID-19 pandemic has forced health care employers across the country to contemplate vaccine mandates for their employees. Brian Dean Abramson, author of Vaccine, Vaccination, and Immunization Law, speaks to Denise M. Hill, Associate Professor of Practice in Public Administration at Drake University and author of AHLA's recent publication, Vaccine Mandates in the Health Care Workplace: A Legal Analysis for Employers, about the factors employers should consider when deciding whether to implement vaccine mandates at their workplaces. They discuss how to structure a vaccine mandate that accounts for employees who don’t want to be vaccinated, the impact of recent case law and state actions, and ways to engage with vaccine hesitancy.
Watch the full conversation here.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
This episode of A H L A speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.
Speaker 2:Hello, I am Brian Dean Abramson, author of the Vaccine Law Treaties, uh, va, uh, vaccine Vaccination and Immunization Law. Uh, and I am here today with Denise M. Hill, who is a professor at the Drake University School of Public Health, and author of the recent really released vaccination mandates in the healthcare workplace, which is an, an absolute, uh, delight read from my perspective, uh, but also a very thorough examination of the requirements and, uh, both the obligations and the abilities of employers in the healthcare workplace to mandate vaccination for their employees. Um, Denise, let me start by asking, when you advise a client who's thinking about mandating a vaccination for their employees, and of course, in this day and age, thinking about mandating Covid 19 vaccination, and they haven't decided whether they should or shouldn't institute such a mandate, what, what advice do you give them? What factors do you put into to, uh, deciding whether they should or advising whether they should?
Speaker 3:You know, when it really comes down to vaccines generally? Um, I think there's always a political component, but as everyone listening is a well aware, uh, with Covid 19 and, and going through the emergency use authorization dur during a global pandemic, that's, uh, gone to a whole new level. So, um, but typically when I'm advising, uh, employers about those is to really look to the science, um, to look to the particulars of, um, what type of, uh, setting they're in. So a long-term care, home health hospital, et cetera, it's going to obviously be different just as it would for an employer in, uh, a small boutique versus a, a large outside venue as well. So, of course, our audiences in the healthcare industry. So within that, uh, scope, what for their organization makes sense in terms of what is required to meet their legal and ethical obligations? Oh, first of all, um, of course we have obligations to those who we serve as part of our mission. Um, in many cases, those are medically fragile individuals. Uh, they may be children. Um, you know, it's, it's going to depend a lot on, uh, who that audience is and what their obligations are there. Within osha, of course, we have obligations, of course, to follow employees. Um, and so, uh, the, um, osha, federal OSHA law requires that employers do an, an assessment of what their workplace requires, and so they're going to look at what is required to keep their workplace safe and relative to a specific, uh, disease, et cetera. Also, because those employees may be a bridge, um, to those who are actually, um, being served, they're also going to look at their legal liability in terms of, especially with hospitals, um, hospital acquired infections and, um, their liability to vendors, visitors, others. Um, you know, we know that some, uh, diseases that we get immunize immunized for, um, tend to be one that, uh, for the larger public because has such great herd immunity like measles and so forth. We don't tend to have large outbreaks unless we're in certain localities or serve certain types of, uh, patients. Um, but when it comes to covid 19, uh, we're, we're in a whole new ballgame. So of course, uh, we can chat a little more about that.
Speaker 2:One of the, uh, biggest objections that has tended to be raised to covid 19 vaccination mandates is the fact that the vaccines have been approved under emergency use authorization. Um, courts have spoken to that recently. What, what is the, what is the sort of current situation with respect to objections on that basis?
Speaker 3:So, I think there's been a lot of misunderstanding among the public. Um, some of it, uh, intentional by folks who have agendas and some just by, by the fact that we do have a history of, um, sometimes having abuses in terms of, um, things that aren't approved yet. Um, and even those that are, so there is some public mistrust that comes into play, but the emergency use authorization, um, process was put in place for purposes just like this, um, where either a, um, drug or a medication or medical equipment is proven to be so effective that it doesn't make sense to go through the full process before people can start benefiting from it. Or in an emergent situation where, like right now we have a novel virus, uh, in this case, a coronavirus that is, um, millions of people around the world and is easily transmissible. So in, in this particular case, there's still a significant process that has to, um, be used to, um, allow that to be authorized for use, uh, since the FDA has not officially approved it and gone through its normal process. Um, and so that's been allowed for many use years. In fact, uh, the, um, the very tests that we've been taking for covid 19, um, were approved for use under that process. Now, something that I think the media and others have failed to really focus on is that the federal government cause of issues related to, um, aphex vaccine and other things in the past, really wanted to ensure that there was a large measure of public trust. So because of that, they didn't just, uh, do an emergency use authorization process as required by the law, which ensures it's safe enough, um, and that the benefit is good enough to go ahead and, and start utilizing it. But they went further. They actually said before December of last year, when they, they authorized, uh, Pfizer Moderna, and then eventually the, the j and j Janssen, uh, vaccine, that it needed to pass what's called emergency use plus authorization. And this plus authorization means that the standard is even higher than the law requires. Um, basically it's, it's just cutting out a lot of the red tape that we typically see. And as I talk to clients, as I talk to, uh, people who are maybe vaccine hesitant, as they start to understand that there was this emergency use authorization plus process utilized, um, they become more comfortable that they don't need to wait, uh, to be vaccinated until the full approval. Although we're hoping in the next, uh, couple weeks we will have some full approval and that that will help to, um, quell some concerns among those who are vaccine hesitant.
Speaker 2:And in the interim courts that have addressed the issue, they've, they've looked to this e u a plus, uh, authorization status, uh, as one of the basis for saying that, that these vaccines can't be mandated. Yes,
Speaker 3:Absolutely. And, and I think they recognize, and, um, many of us recognize that even far and above the research that would happen under the FDA approval process, we have millions and millions of people across our country, and depending on the vaccine across the world that have successfully utilized, uh, these vaccines and the side effects are so minimal, the, uh, you know, it's so safe and so effective that I think it's even surprised, um, you know, those who are in the industry. Um, in fact, I've said to people, this is the way a lot of our vaccines and medicines will be used in the future, and that the risk is, is safer than most over-the-counter, uh, drugs that we use every day. Um, so I think that, um, there is a lot of confusion, but legally we're on very strong footing that even though this was passed by emergency use authorization, um, it is safe and, um, it is effective. And, um, and, and if that's challenging court, I think courts will uphold in this particular case.
Speaker 2:Now, say you have a client who has decided that they're going to mandate vaccination for their employees, uh, once they cross the threshold of making that decision, what do you tell them, um, that they need to do in terms of structuring that mandate, um, in terms of setting up, uh, provisions to deal with people who don't wanna be vaccinated or who assert that they have, um, reasons under the law by which they should be exempt from a vaccination. Um, what is the, what is the sort of advice that you would give them in those circumstances?
Speaker 3:Okay, yeah. You know, um, one of the things that's happened in the interim from when I submitted the, the manuscript for my book, um, back late this spring and now, is that very recently, um, 50, I think plus healthcare organizations, the American Health Association, the American Medical Association, the American Nurse Association, uh, leading edge in long-term care. Um, all of the professional organizations have said we should be mandating or requiring that people, uh, in healthcare organizations are, are vaccinated. And whether they're not vaccinated, then we need to have other, um, safety protocols in place. Um, so because of that, we definitely, um, I think should feel very comfortable that there's wide ranging support and that we should be taking that a very seriously. Once again, though, as a employer, even in the healthcare setting, they should look at their individual organization and, uh, work with their advisors to decide, is this exactly what I should have? Um, and then once they've decided, like you said, that they want to move forward, the next part is what are we requiring? Uh, what are we gonna put into our policies? How are we going to enforce this? Um, what do certain things mean? How are we going to recognize, um, and then apply medical exemptions for people who are, uh, uh, contraindicated for this? How are we going to treat people who have a natural immunity, um, already to the vaccine because they've had covid, um, or maybe it's not even suggested yet because it's so recent. Um, and of course then the religious exemptions as well. Um, one of the things that a recent California decision, and this is in the employment setting, uh, came down with was that in fact it wasn't a mandate. Um, so I think one of the questions is, is what we're re we're putting in place, really a mandate is that, that we're requiring, um, people to all, you know, wear masks and be regularly, um, tested and so forth. Um, and, and if they are already vaccinated, they may be exempted from some of those requirements, maybe not all in light of that new CDC guidance fund being mask, even if you are exempt. Um, but, um, because of that, we have a lot of, um, you know, questions about is it actually a mandate? So is it a mandate? Of course, mandates don't mean we hold, uh, anyone down and actually, you know, jab them in the arm, and some might suggest, um, but we do set those conditions of employment, um, and as part of signing those conditions of employment, then we can determine whether or not we're gonna have vaccines as an exception, or whether we're going to require vaccines. And, um, if somebody doesn't comply by a certain certain date or fit with an exemption, then they will lose their job or go on furlough or, um, uh, you know, lose access to the premises, et cetera. Um, and so you wouldn't need to decide, you know, is this technically a mandate? Is this, um, something short of a mandate? Um, when I've been doing a lot of interviews lately, uh, some of the newscasters have been asking me, so is this a loophole? And I would say it's not a loophole. I would just say that, um, it's a different way to look at it within the policy and whether it's a mandate, obviously a mandate is stronger. Um, but either way, the law has been very clear, um, both in the healthcare setting with a recent, um, uh, case that came down, there was a motion to dismiss for, uh, the Houston medical case. I'm sure all, everyone listening is familiar with that. Uh, where the court said, no, uh, the healthcare employer has, even though people have a 14th amendment right to, um, not have unwanted medical interventions, uh, the 14th amendment also allows for employers and government entities to take steps to protect themselves and their entity. And this was also reinforced by, um, a rent, uh, Indiana case, the class and case where they had students. In this case, although the policy applied also to employees, um, were saying that, uh, it was, um, it was, um, unconstitutional for them to be, um, required to have vaccination or be subject to these types of requirements. Um, interestingly, that was just upheld, uh, at the appellate level, um, the day before yesterday. Um, so, um, now we have the highest level of, um, precedent setting specific to, um, COVID 19 and the rite of employers. So we have the Houston case at the district level that reinforces specific to healthcare. And we also have, um, the educational setting. Um, in all of the cases that we've seen, um, there has been by the courts, uh, a, a recognition that, um, the importance of we're in a declared emergency, national public health emergency is a global pandemic that in this setting, there is definitely the right of employers to make those terminations. So I think any employer who's decided to move forward should feel very confident that whatever they do will be upheld. Um, they may encounter a lawsuit, although hopefully some of these that are already in play will kind of cut back on that concern that some hospitals may have. Um, they also, um, need to be thinking about, um, their requirements for, uh, working with employees and trying to get employees involved. Um, I'll let you ask another question, Brian, but then I have a few more things I can add to.
Speaker 2:Well, the one thing that, uh, had come to my mind was that there are are a number of states, uh, where the state government, um, through an executive order or through some legislation, has sought to limit the ability, uh, not not necessarily of employers to, to mandate covid vaccination, but certainly, uh, to limit the ability of businesses to require that, uh, customers or patrons show that they're vaccinated in order to patronize that business. Um, I'm wondering what your thoughts are in terms of the fact that there does seem to be a politicization of the issue and kind of a divide where there are states that are, um, clearly more favorable to vaccination and vaccination mandates and, and, and pushing those at the state level, um, and states that are, uh, more reticent towards those and kind of, uh, pushing against them at the state level and how that may affect employers, uh, and healthcare employers going forward.
Speaker 3:One thing that has not changed since the time that, uh, I submit the book is, uh, how politicized, um, this issue that really isn't political. Um, unfortunately that's been the case, and as it's been, uh, considered to be more and more political, um, we have had, uh, state leaders and some, and some states, including my, uh, state of Iowa that have passed legislation. I believe there's 12 to 14 right now that have passed it. Uh, Hawaii is the one that has, um, actually a, um, what they're terming a vaccine passport process in place. And they do have a mandate, um, many states it's permissible, um, and an open question. And then, uh, I think 40 states have introduced legislation, at least my last count. Um, the biggest point here is that, um, as a, a wise young man who knows a lot about vaccines and vaccine law once told me no vaccine mandate or related law is equal. And so that's very true. Uh, some states it applies, uh, across the board, um, to any business in the state. Um, in some cases it carves out healthcare as an exception, or it carves out employees, uh, in the state. Um, most of these are under the, um, title of banning vaccine passports. The idea of being that, and I talked a bit in the book about this, although it's certainly grown and prevalent since then, but, um, the idea being that, uh, they don't want people being treated as second class citizens because they, uh, chose not to be vaccinated and or to, in some cases, they, they make it again to, uh, participating in, uh, um, medical research, um, or a par side I even saw. Um, but, but what they're saying is that, um, no one can do it. Um, the enforcement that they have at the state level, even though the police powers do typically defer to the state for purposes of health and safety and police powers, um, the, the primary tool that they use is, uh, leverage of state and, uh, government funds, um, so grants and so forth. Um, my own university is not, uh, at the present time mandating vaccinations because, uh, they receive a lot of federal funds for our students as a private university and nonprofit. Um, and so, uh, they're having to evaluate that impact in comparison with their concerns about student and faculty safety. Um, so I think it's really important that you will look at what is happening in your state law at the same time. Um, I think ultimately with, even if your, your state does not, uh, differentiate or carve out healthcare, um, I would encourage you to do, uh, what you need to do for your organization. Um, and, um, so it is certainly a live consideration, especially for public hospitals. Um, I, you know, they'll have to evaluate that along with their advisors.
Speaker 2:And, and recently, uh, the governor of Arkansas, for example, has regretted that, uh, he signed into law a ban on mask mandates. So, um, it's certainly conceivable and indeed foreseeable, um, that some of these states that have passed restrictions on, uh, vaccination passports or have placed limitations of sort of broadly worded that could sweep in employer employer relations, uh, they may come to regret that and reverse course on that.
Speaker 3:I, I certainly think that's a possibility. And, um, uh, you know, I think that this new Delta variant has, uh, brought a whole new dimension. Um, uh, as I talk about in the book, um, previously it was asymptomatic in a large number of people with the original, um, uh, covid 19. And so we, if you didn't have people around you that were seriously affected if, if they were asymptomatic or, or, you know, had mild illness, um, it was very easy to say This isn't real, real. Um, with what we're seeing with the Delta variant being so transmissible and so much more deadly, um, I think it's a whole new ballgame. And so I do, uh, think that we will start to see, um, some folks who maybe originally thought this was just, uh, political, um, government and media trying to, good story to recognize this is a real dire emergency. The ma the point is though, how soon that will happen and how many have to, uh, die or be very sick or be long haulers before that determination, um, is made. So, um, I, I think I saw that there was a very conservative talk show host who has changed tune, uh, because they had covid and they're worried about, you know, their children can't come see them in the hospital. So I think we're gonna see that among healthcare workers who are taking a physician right now for, for political reasons, um, and so forth. And if it's okay, Brian, I'd like to, um, move from the political piece though, to tell those who are moving forward, uh, with, uh, vaccine mandates, or even if you're considering and it's still, uh, you know, a vol on a voluntary basis, what I have found to be the effective in working with people who are truly vaccine hesitant, and that's where I would concentrate your energy. Um, when it becomes politicized, it's much harder to, uh, get over that cognitive dissonance where people are not gonna hear what they want to hear. So what I have been, uh, telling individuals is kind of that same form message as everyone else has. Um, number one, uh, the Delta variant is very deadly. Uh, we're on a time clock. Uh, lambda is also evolving. So, uh, you know, it's, it's not just Delta and that what they're calling Delta plus. So this is very, very serious, um, because we don't have enough people vaccinated, um, because it's seasonal. And even though we're seeing huge increases now about October, November, uh, we're going to have that one thing that people are forgetting to send is that, uh, the immunity that we have, which isn't Delta, isn't, uh, necessarily a protect, uh, we're not protected if we've already had covid from Delta, but we still have some natural immunity in our body, um, is usually six to 12 months at the most. And if we think about the seasonality and when most people who currently have that protection in place will lose that protection, it's about the same time that we're going to have seasonality change. Um, and so I think when people start to think about, uh, the perfect storm that's coming with Delta, with seasonality, with the low vaccination rate, um, and with, um, concerns about people losing their natural immunity, they, they really start to think about that. I also reinforce the fact that they, the emergency use audiation plus pro process, which most people are not familiar with that, um, how safe it is and how many people have been vaccinated, how safe it is, especially in comparison with other medications. Um, the other thing that I think has been really persuasive is to help them understand how variants work. I, I, I found for a lot of nurses and others that they really, um, that's, that's one of the things that maybe even though they know science, they didn't understand before, the other piece that I would encourage them to, to, uh, recommend to those who are vaccine hesitant or ask frankly the best, um, people are to have fellow nurses who have been vaccinated had a, a good experience, to be honest, that yes, I didn't feel well for a couple days. I, my arm hurt for a week, you know, whatever we might expect so that they're not, um, you know, promising it's a magic pill cuz it's, you know, it's not a magic bullet, but the closest we have. But the other thing is to be very empathetic and understand that, especially among young women, um, they have heard that they might be infertile if they take this vaccine. Um, and that's a very scary thing for young women. So I think being prepared to help them understand that that's not a true risk, um, helping them to work through if they need to, the, the studies that demonstrate, you know, that supposedly demonstrate that's a risk that those are, have been debunked. Um, and then bringing them back to the mission and purpose for why they became a nurse, a doctor, or working for a healthcare organization, the mission that they all share and how badly they would feel if they were the person who brought that to a patient, um, or brought something home to those they love. Um, and that when we had something so safe, so effect, um, and they're dedicating their life to serving these patients. Um, you know, those are medically fragile. A lot of said, well, we work with kids and so, you know, obviously Delta that's changed that, but if you're in a neonatal unit, um, none of those babies have been able to be vaccinated. Um, and from what we've seen in India and other places, Delta doesn't distinguish based on age nearly as much as as, um, the other variations. Um, and then, uh, I guess I would certainly encourage them to also consider, um, permissible incentives. There's a lot of guidance now that's come down even since the book that talks about what those would be, um, incentives have been shown to, to work, um, both publicly and then those within organizations. Um, so definitely utilize incentives. Um, try to find out why. Uh, one of the things I recommended in the book, and again, it was before we've had some of these latest things happening, is that we really need to involve the stakeholders in the discussion. So why is it that you're concerned? Um, and try to be responsive to those issues and to engage them. Ultimately, you may not be able to convince some of your people. And then the question is, you know, what are the next steps? Is there a disciplinary process? Um, are they going to just have to subject themselves to more things? Um, but hopefully this will really reassure and give, uh, there's a ton of research out there and vaccine hesitancy that your staff can use. Um, and uh, that will help to overcome not even the legal piece, but perception is reality. And in order for us to enforce what we legally can do as, as hospitals and healthcare providers dedicated to helping serve patients and others, this is really what we need to do.
Speaker 2:Denise, thank you so much for providing such an enlightening and informative discussion today. Um, and I think that, uh, the viewers of this podcast are going to be, um, very well, uh, informed and prepared going into, uh, their next steps from having observed this.
Speaker 3:Uh, well, and as we speak today, I'm sure that, uh, there's some new, uh, developments. It's a moving target, um, as you and I both have talked about. Um, and so, um, eh, h l A is going to continue to add, um, new developments, um, to their website. Um, so be sure to continue to watch those too. And, um, thank you so much, Brian. Uh,
Speaker 2:It's my pleasure.
Speaker 1:Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L A speaking of health law wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org.