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Emboldened employers require vaccinations


More health care employers are requiring workers to get vaccinated for COVID-19, a trend experts say has been spurred by a rise in cases of the disease nationwide and the recent dismissal of a federal lawsuit challenging a vaccination mandate.

A federal judge for the Southern District of Texas in Houston on June 12 dismissed a lawsuit filed by 117 workers at Houston Methodist Hospital over a requirement that they be vaccinated against COVID-19 or lose their jobs.

“Methodist is trying to do their business of saving lives without giving them the COVID-19 virus,” the ruling in Jennifer Bridges, et al. v. Houston Methodist et. al. states. “It is a choice made to keep staff, patients and their families safer.”

Since then, dozens of hospital systems have mandated COVID-19 vaccinations for workers, and numerous health care organizations are calling for more to do so.

Mandate opponents cite the speedy timeline for the development of the vaccines and the lack of full approval by the U.S. Food and Drug Administration. They also question the vaccines’ safety following reports of adverse events following the shots.

The Association for Professionals in Infection Control and Epidemiology, the Society for Healthcare Epidemiology of America and five other organizations representing medical professionals working in infectious diseases, infection prevention, pharmacy, pediatrics and long-term care issued a joint statement on July 13 stating that hospitals and other health care facilities should require employees to be vaccinated against COVID-19.

“The first reason is ‘do no harm,’” said Rochester, New York-based Ann Marie Pettis, APIC’s president and an infectious disease prevention nurse. “We deal with the most vulnerable population. … We can’t afford to come to work asymptomatic and put our patients at risk. ”

Ms. Pettis said the threat of litigation has deterred some hospital systems from requiring COVID-19 vaccinations. “I think Houston Methodist took that concern off the table,” she said.

However, another issue has emerged, as hospitals that require vaccinations fear that some workers will leave to join competitors that don’t have shot mandates. “They are really concerned about the possibility of losing staff,” Ms. Pettis said.

Some legal experts warn that despite the Texas ruling, litigation could still be on the horizon, as some of the arguments against mandatory vaccinations remain a point of contention.

“Until we have full (FDA) approval, there’s no precedent to mandate the vaccines,” said Wendy Lazerson, Palo Alto, California-based partner and co-chair of the employment and labor group for Sidley Austin LLP in both Palo Alto and San Francisco. “Once that happens … employers will be able to mandate, and these challenges to individual freedom are going to go by the wayside because there is so much authority and precedent where the public good demands something be done.”

The Houston Methodist ruling, which is on appeal, may have complicated the issue further, said Nicholas Reiter, New York-based partner and co-chair of the labor and employment practice group at Venable LLP, adding that concerns from employer clients over vaccination requirements rise “daily.”

“While the Bridges decision might give employers more comfort, I think employers are still wrestling with, do they want to go as far (as) to require the vaccine for employees to keep their job,” he said. 

A directive from the U.S. Equal Employment Opportunity Commission can be helpful in employers’ decision-making, he said. The EEOC in May determined that employers can mandate COVID-19 shots for employees provided they do not meet the bar for exceptions, which include religious beliefs and health concerns.

Still, Mr. Reiter said, many employers don’t want to go that far. “They will instead allow incentive programs that encourage but do not require” vaccinations, he said.

“Some of the employers had been watching cases drop and they might have been thinking this is going away. But this may play out in the other direction. … We see that in the news every day,” he said.