We have all experienced an unprecedented situation with the global COVID-19 pandemic. A virus not visible to the naked eye has caused us all to take a pause. In the past 20 months the following words have entered our vocabulary on a daily basis: COVID, masks, social distancing and vaccinations.
Now that vaccines have been readily available to the public throughout the year, many states and agencies have begun mandating vaccine requirements for certain health care workers.
State-Mandated Vaccine Requirement
While the majority of the country has vaccine mandates in the works, some states and agencies have taken the lead on this matter. The following list represents selected current guidance for the following States: NJ, CA, NY, PA, RI, WA, OR, NC, MD with more on the way.
NB: This is not an exhaustive list.
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
- 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
- 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.
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
- 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.
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.
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-
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. 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.
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
This article originally appeared in MedTrade Monday and is reprinted with permission