The federal COVID-19 vaccine mandate affecting home healthcare workers is likely to draw a number of legal challenges, especially when it comes to medical and religious exemptions. Employment attorney Angelo Spinola made that prediction Monday during a virtual discussion on vaccine mandates hosted by the National Association for Home Care & Hospice.
“We think there are probably different challenges here with different chances for success,” Spinola said.
The Biden administration issued an executive order Sept. 9 that requires all federal workers, federal contractors, workers at healthcare firms accepting Medicare and Medicaid, and employees at businesses with more than 100 workers to be vaccinated.
States take the lead
Vaccine mandates in nine states and the District of Columbia may be providing a blueprint of sorts for what agencies nationwide might expect when the national mandate goes into effect.
As one example, Maine’s mandate doesn’t provide a religious exemption, and that has already prompted one lawsuit. And the mandate’s medical exemption is also proving to be problematic. Ken Albert, president and CEO of Androscoggin Home Healthcare and Hospice, said his agency has encountered issues with employees getting exemptions from telehealth providers that might not be valid.
“An individual can go online and fill out a static survey and then in the mail receive a medical exemption with some standard language on there,” Albert said during the webinar. “For most states that does not satisfy the state laws and regulations for telemedicine.”
In contrast to Maine, New Jersey’s vaccine mandate for healthcare workers, which has been in effect for a few weeks, is providing relief to home health agencies who were having difficulty convincing some workers to get the shots.
David Totaro, chief government affairs officer for Bayada Home Health Care, said his company conducted one-on-one calls to unvaccinated workers to make sure they got the shots.
“These calls actually had two very important results. We learned a good portion of those who we had no record of being vaccinated had been vaccinated and had not had time to report it or didn’t know they had to report it,” Totaro said. “But, even more importantly, these one-on-one calls moved many to get vaccinated.”
Final rule set for October
The Centers for Medicare & Medicaid Services will issue a final rule on the federal mandate next month, following a public comment period. The Department of Labor’s Occupational Safety and Health Administration must also release details on the rule that applies to private employers.
