Can Long-Term Care Employers Require Staff Members to Be Vaccinated?

As legal experts and ethicists debate, some companies aren’t waiting.

By Paula Span

For much of the winter, Meryl Gordon worried about the people caring for her 95-year-old mother, who was rehabbing in a Manhattan nursing home after surgery for a broken hip.

“Every week they sent out a note to families about how many staff members had positive Covid tests,” said Ms. Gordon, a biographer and professor at New York University. “It was a source of tremendous anxiety.”

Ms. Gordon feels reassured now that her mother is fully vaccinated and has returned to her assisted living facility. But what about the two home care aides who help her 98-year-old father, David, in his Upper West Side apartment?

Neither has agreed to be vaccinated. David Gordon’s doctor has advised him to delay Covid vaccination himself because of his past allergic reactions.

Ms. Gordon has not insisted that the caregivers receive vaccinations. “You’re reluctant to do something that could cause you to lose the people you rely on,” she said. But she remains uneasy.

It’s a question that many long-term care employers, from individual families to big national companies, are confronting as vaccines become more available, although not available enough: In a pandemic, can they require vaccination for those who care for very vulnerable older adults? Should they?

Some employers aren’t waiting. Atria Senior Living, one of the nation’s largest assisted living chains, has announced that by May 1 all staff members must be fully vaccinated.

Silverado, a small chain of dementia care homes, most on the West Coast, mandated vaccination by March 1. Juniper Communities, which operates 22 facilities in four states, has also adopted a mandate.

“We felt it was the best way to protect people, not just our residents but our team members and their families,” said Lynne Katzmann, Juniper’s chief executive. Of the company’s nearly 1,300 employees, “about 30 individuals have self-terminated” because of the vaccination requirement, she reported.

Juniper’s experience supports what public health experts have said for years: Vaccine mandates, like those that many health care organizations have established for the flu vaccine, remain controversial — but they do increase vaccination rates. As of Feb. 25, 97.7 percent of Juniper residents had received two vaccine doses, and so had 96 percent of its staff members.

That stands in stark contrast to staff vaccinations in many facilities. The Centers for Disease Control and Prevention has reported that during the first month of vaccine clinics in nursing homes, only 37.5 percent of staff members received the first shot, along with 77.8 percent of residents.

The results of opinion surveys vary, depending on who is asked and when. In January, a Kaiser Family Foundation analysis found that 29 percent of health care workers expressed doubts about vaccination.

A national recruiting platform for health care companies, myCNAjobs.com, last month polled 250 companions, aides and nursing assistants in facilities and in home care; it interviews thousands more daily. It estimates that 35 percent plan to be vaccinated, 20 percent do not and more than 40 percent remain unsure.

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These workers can’t distance from the older people they help with tasks like bathing, dressing and toileting. As they enter and leave facilities and private homes, often working multiple jobs, these workers can spread the coronavirus, and they and their families are likewise vulnerable to its dangers.

Experts say it is probably legal for employers to make vaccination a condition of employment. The federal Equal Opportunity Employment Commission has agreed, so long as mandates permit health and religious exemptions. A University of Pennsylvania analysis found last fall that nationally, about half of American adults would consider employer mandates acceptable.

“It’s unwise to mandate a vaccine while it’s under an emergency use authorization,” as the three vaccines in use in the United States are, said Lawrence Gostin, a law professor at Georgetown University. Because mandates during an E.U.A. could bring legal challenges, he advised waiting for full Food and Drug Administration approval.

That could come as early as next month for the Pfizer-BioNTech and Moderna vaccines. After that, “I would expect state or local governments might mandate that people working in health care be vaccinated,” said Mr. Gostin, who directs a World Health Organization center on health law. “They’d have the right to do that.”

Ethically, he added, “it’s entirely justified. People have the right to take chances with their own health, but they absolutely do not have the right to endanger others.”

Other public health specialists argue for incentives — carrots instead of sticks. With long-term care chronically understaffed, “I don’t think we want to do anything right now to push people out of those settings,” said David Grabowski, a health policy researcher at Harvard Medical School.

He suggests far more substantial rewards than the gift cards or free meals some facilities are offering, as well as paid time off, so that employees can get inoculated and afford to miss a day’s work or two if they have reactions.

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