AMARILLO, TX – One of the biggest hurdles in the fight against the COVID-19 virus is the increasing numbers of sick patients in need of medical care and the dwindling number of health care workers available to treat and care for them. This is largely because many health care workers either tested positive for COVID-19 or were exposed to individuals who had the virus and were therefore required to quarantine. Now that vaccines are readily available to the public, many states and agencies have begun mandating vaccine requirements for certain health care workers.
For example, the Department of Health and Human Services, New Jersey, California, New York, Oregon, Pennsylvania, Rhode Island, Washington, Maryland, and North Carolina have all enacted vaccine mandates for certain health care workers in those states. Because vaccine mandates are continuing to be implemented throughout the country, health care employees should continuously monitor their states’ guidance to remain up to date with the latest requirements.
While not directly addressed in this article, it is important to note that there are currently more than 100 health systems across the country that have mandated similar vaccine requirements – including hospitals and systems located in states that have yet to issue a vaccine mandate for health care workers. If you are unsure whether your organization requires vaccination, it is advisable to inquire about this matter as soon as possible in order to avoid being in violation of any implemented mandate.
State-Mandated Vaccine Requirement
While the majority of the country has yet to issue vaccine mandates, some states and agencies have taken the lead on this matter. A few states have indicated that penalties will be imposed for noncompliance with these mandates; however, even in the states where penalties may not be imposed, it is important to follow the enacted guidelines to avoid any penalties or liabilities that may be implemented down the road. The following list represents selected current guidance as of the date of drafting of this article.
- New Jersey
On August 6, 2021, the New Jersey Governor, Phil Murphy, signed Executive Order 252, that instituted a policy whereby workers in certain state and private health care facilities and high-risk congregate settings must be vaccinated against COVID-19 by September 7, 2021, or be subject to COVID-19 testing at a minimum of one to two times per week.
For purposes of the order, health care and high-risk congregate settings include, but are not limited to:
- Acute, pediatric, inpatient rehabilitation;
- Specialty hospitals and ambulatory surgical centers;
- Long-term care facilities;
- Intermediate care facilities; and
- Licensed home health agencies and registered health care service firms operating within the state
Workers are considered “fully-vaccinated” for COVID-19 two weeks or more after they have received the second dose in a two-dose series or two weeks or more after they have received a single-dose vaccine.
Individual facilities remain able to impose more stringent vaccination or testing requirements, including any requirement for more frequent testing, for testing of both vaccinated and unvaccinated staff, and for mandatory vaccinations without a testing alternative.
On August 5, 2021, the Governor of California issued a public health order mandating that all workers who provide services or work in the following facilities must have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021:
- General Acute Care Hospitals;
- Skilled Nursing Facilities;
- Intermediate Care Facilities;
- Ambulatory Surgery Centers;
- Clinics and Doctor Offices; and
- Hospice Facilities.
Workers may be exempt from the vaccination requirement by providing proof, via a declination form, signed by the individual stating that the individual either is declining vaccination based on religious beliefs or is excused due to qualifying medical reasons. If a worker is deemed to have met the requirements for an exemption, the unvaccinated worker must meet the following requirements when entering or working in such facility:
- Test for COVID-19 twice-weekly for unvaccinated exempt workers in acute health care and long-term care settings, and once weekly for such workers in other health care settings; and
- Wear a surgical mask or higher-level respirator at all times while in the facility.
For purposes of this rule, the term “worker” refers to all paid and unpaid individuals who work in indoor settings where (1) care is provided to patients, or (2) patients have access for any purpose. This includes workers serving in health care or other health care settings who have the potential for direct or indirect exposure to patients or SARS-CoV-2 airborne aerosols.
- New York
The Governor of New York recently mandated that all state workers and all patient-facing health care workers at state-run hospitals will be required to get vaccinated for COVID-19 by September 6, 2021. There will not be an option to be tested in lieu of vaccination for those patient-facing health care workers.
State run Hospitals include:
- SUNY Stony Brook;
- SUNY Upstate;
- SUNY Downstate;
- Long Island Veterans Home at Stony Brook;
- Helen Hayes Hospital;
- SUNY College of Optometry;
- Montrose Veterans Home;
- Albans Veterans Home;
- Oxford Veterans Home; and
- Batavia Veterans Home.
On August 4, 2021, the Governor of Oregon issued a rule that requires weekly COVID-19 testing for personnel in health care settings to prevent the spread of COVID-19, which can be waived with a proof of vaccination. This rule will take effect on September 30, 2021 and applies to personnel in health care settings who have direct or indirect contact with patients or infectious materials.
On August 10, 2021, the Governor of Pennsylvania issued a mandate requiring that commonwealth employees in state health care facilities and high-risk congregate care facilities will be required to be fully vaccinated against COVID-19 by September 7, 2021. Individuals who are not vaccinated will be required to undergo weekly COVID-19 testing. Additionally, beginning September 7, all new external hires in these facilities must be vaccinated before commencing employment. This rule will affect approximately 25,000 employees working in 24-hour-operated state facilities including state hospitals and community health centers.
In order to incentivize employees to get vaccinated, the Governor stated that starting on October 1, 2021, all vaccinated state employees under the Governor’s jurisdiction will be eligible for an additional 7.5 or 8 hours of paid time off.
- Rhode Island
On August 10, 2021, the Governor of Rhode Island announced that health care workers at facilities licensed by the state will have to be fully vaccinated against COVID-19 by October 1, 2021, or else be tested twice a week and continue wearing a mask. This rule applies to everyone except those with medical exemptions and covers facilities ranging from nursing homes to state-run hospitals and private facilities.
During a press conference, the Governor of Rhode Island was asked whether workers could lose their jobs or face other consequences if they do not get vaccinated or submit to weekly testing. The Governor indicated that the issue would be addressed if, in fact, this situation occurs. Therefore, loss of employment for not abiding by the mandate cannot be ruled out at this time.
On August 9, 2021, the Governor of Washington, Jay Inslee, issued an order requiring most state employees – along with hundreds of thousands of health care workers – to get vaccinated by October 18, 2021, or lose their jobs. Specifically, the order indicates that if workers do not show proof of full vaccination, they will face “non-disciplinary dismissal” for failure to meet job requirements.
On August 5, 2021, the Governor of Maryland, Larry Hogan, announced that state employees, including employees in the Department of Health – which includes 11 state health care facilities – will need to receive their first dose of a COVID-19 vaccine by September 1, 2021. Workers who cannot provide proof of vaccination will have to adhere to strict masking requirements and regular testing. Anyone attempting to provide false proof of vaccination will be subject to disciplinary action.
- North Carolina
On July 29, 2021, the Governor of North Carolina mandated that all workers or volunteers at state-run health care facilities will need to be fully vaccinated against COVID-19 by September 30, 2021. This applies to all employees, volunteers, students, trainees, contracted and temporary workers working at such facilities. Anyone who does not get fully vaccinated or obtain an exemption will be subject to disciplinary action, up to and including dismissal, for unacceptable personal conduct.
This rule applies to the following hospitals – note that this is not an exhaustive list:
- Atrium Health;
- Cone Health;
- Duke University Health System;
- Novant Health;
- Wake Forest Baptist Health;
- UNC Medical Center;
- UNC Rex;
- UNC Johnston;
- UNC Chatham;
- UNC Rockingham; and
- UNC Southeastern.
- Department of Health and Human Services
On August 12, 2021, Secretary Becerra of the United States Department of Health and Human Services indicated that the department would require more than 25,000 members of its health care workforce to be vaccinated against COVID-19.
Staff at the Indian Health Service and National Institutes of Health who serve in federally operated health care and clinical research facilities and interact with or have the potential to come into contact with patients will be required to receive the COVID-19 vaccine. This includes employees, contractors, trainees, and volunteers whose duties put them in contact or potential contact with patients at an HHS medical or clinical research facility.
Additionally, the U.S. Surgeon General, Dr. Vivek Murthy, is requiring members of the U.S. Public Health Service Commissioned Corps to be vaccinated against COVID-19.
While the vaccine mandates listed in the section above generally apply to hospitals and other clinical settings, it foreshadows the implementation of vaccine mandates for the health care industry as a whole. This could include DME companies and pharmacies. In many cases, vaccines will be required for providers to continue to have access to facilities and patients in these facilities. Health care workers should continuously monitor policies implemented by their states to ensure compliance with any new guidance or mandates.
Kelly T. Custer, JD, is an attorney with the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies and other health care providers throughout the United States. Custer can be reached at (806) 345-6343 o firstname.lastname@example.org.
Jeffrey S. Baird, JD, is chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or email@example.com.
 Note that this is not an exhaustive list.
 To be eligible for the qualified medical reasons exemption, the worker must also provide to his employer a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine.