BY A. Kevin Troutman, Partner, Fisher Phillips
During the past few weeks, regulatory and legal developments seem to be providing more clarity for healthcare and other employers who are working through what they hope will be the final stages of the global COVID-19 pandemic.
Both the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) recently updated their guidance, demonstrating tremendous confidence in the importance and effectiveness of COVID-19 vaccines. Last month OSHA issued its long-awaited Emergency Temporary Standard (ETS), which focuses on what the agency refers to as the “grave danger” that still exists for healthcare workers caring for patients with coronavirus, particularly workers who remain unvaccinated. A federal court in Houston also resoundingly rejected a legal challenge to the vaccine requirement that Houston Methodist adopted for its employees, citing guidance from the Equal Employment Opportunity Commission (EEOC), the Food and Drug Administration (FDA), and other sources.
Subsequently, many more employers, especially in healthcare, announced that they will require employees to be fully vaccinated. That growing list includes Johns Hopkins Hospital, Henry Ford Health System, Mass General Brigham, New York-Presbyterian, Beth Israel Lahey Health, Inova Health System, and the Hospital of the University of Pennsylvania.
OSHA, the federal agency that oversees workplace safety across most of the country, directed its ETS toward healthcare settings, where masking and many other precautions are generally still required. While OSHA’s guidance for employers outside of healthcare settings generally mirrors CDC guidance, the ETS requires covered healthcare employers to adopt a detailed COVID-19 plan; strongly encourage vaccinations; implement other specific safety measures; conduct employee health screenings; provide training and perform additional record keeping, and to provide employees paid time off for certain vaccine or COVID-19 related reasons. On July 1, the American Hospital Association asked OSHA to delay the compliance schedule for the ETS by six months due to the detailed requirements that the new ETS established.
Even though the path forward now seems clearer than it has for a year or longer, questions and challenges remain, including strong pockets of resistance to COVID-19 vaccines, even among healthcare workers. The topic of mandatory vaccinations remains highly controversial as conflicting versions of “scientific facts” appear in various media. With vaccination rates having slowed and the flu season looming in the fall, it remains far from certain when the pandemic will end and life will truly return to how it was before 2020.
In Southeast Texas, signs of normalcy are certainly returning. In fact, masking and distancing may sometimes seem to be almost non-existent, except in medical settings and airports. But if reported vaccination data is accurate, roughly half of the people who are unmasked and not distancing are not fully vaccinated.
Both the CDC and OSHA emphasize that unvaccinated and other at-risk (vulnerable) people should be continuing to mask, distance, and follow all applicable COVID-19 precautions. If inspected by OSHA, all employers (including those outside of healthcare) should be prepared to show that they are indeed following such guidance, which also includes the general rule that anyone who is symptomatic, including fully vaccinated people, should stay away from others until they clear applicable safety criteria.
Does seemingly widespread disregard for CDC guidance mean that another spike in COVID-19 cases is inevitable? That is the question. The answer is unclear, and it may ultimately hinge on the overall level of immunity that exists in each community and among healthcare workers.
Even though the CDC has received criticism for issuing what could be construed as inconsistent guidance, another view is that the guidance has been rapidly evolving in the face of a new and unprecedented crisis. Even among those who contend that the COVID-19 crisis was exaggerated, however, there is no denying that the nation’s and the state’s healthcare system was pushed near its limits in 2020 and that hundreds of thousands of Americans died from respiratory illnesses. Healthcare workers witnessed that horror first-hand. A recent CDC study found that at least half of public health workers suffered symptoms of mental health strain during the pandemic.
A few key facts capsulize why vaccinations and precautions remain so important among healthcare workers, especially those who may come into contact with COVID-19 patients. First, experience shows that as vaccination rates increase, employee illnesses and absenteeism decline. Second, patient care necessarily includes close contact with patients who are more vulnerable to the ravages of the virus, evoking the sacred oath of healthcare workers to do everything possible to keep their patients safe and healthy, as cited by Houston Methodist CEO Marc Broom. Third, OSHA believes that unvaccinated workers who care for COVID-19 patients face “grave danger” as a result. Fourth, nearly all recent COVID-19 deaths in the United States have been among the unvaccinated, according to reports.
Finally, if indeed roughly half of the people who are no longer masking and distancing in public places (such as grocery stores and restaurants) are unvaccinated, then unvaccinated healthcare workers face increasing risks of exposure even as they go about their daily lives away from the workplace. The Delta variant and other virus mutations may inject more susceptibility into the mix, especially among the unvaccinated. In short, healthcare employers have increasingly compelling reasons for at least strongly encouraging their employees to get vaccinated.
Nevertheless, despite giving employees plenty of advance notice, granting accommodations for hundreds with certain medical or religious reasons for not getting vaccinated, and mounting a thorough educational campaign, Houston Methodist still faced legal challenges, demonstrations, and other distractions and a lawsuit because it required its employees to be vaccinated. Under the circumstances, it is remarkable that Methodist apparently retained nearly 99% of its employees during this entire process.
Employers who are considering joining the list of systems that will be requiring employees to get vaccinated will have to weigh all of these factors before making a final decision.