New federal mandates and court decisions are making it much easier for senior living facilities to require COVID-19 vaccinations for staff.

Last week, the U.S. Department of Veteran’s Affairs announced that it is requiring 115,000 of its health care workers to be vaccinated, making it the first federal agency to mandate the vaccine for its workforce. Direct care workers will be given eight weeks to be fully vaccinated. They also will receive four hours of paid administrative leave as an incentive for getting the vaccine.

The department reports that to date, 146 of its health care workers and 12,679 veterans have died from coronavirus-related complications. Although approximately 70% of its workers have been vaccinated – which is above the national rate of vaccination – the department now is requiring full compliance to protect veterans, many of whom are seniors and more vulnerable to the virus.

The department’s decision is supported by nearly 60 major health care organizations, including the American Medical Association and the American Nurses Association, which recently issued a joint statement calling for mandatory vaccination of all health care workers. The statement said that health care and long-term care organizations should require their workers to receive the COVID-19 vaccine: “This is the logical fulfillment of the ethical commitment of all health care workers to put patients as well as residents of long-term care facilities first and take all steps necessary to ensure their health and well-being.”

Does this new mandate give long-term care facilities the green light to implement mandatory vaccination programs for their own health care workers? While many facilities have implemented mandatory vaccine programs, others have delayed implementation in response to worker concerns and resistance.

In June, a federal court in Texas dismissed a lawsuit brought by health care workers who challenged a hospital’s COVID-19 vaccine mandate. In doing so, the court dismissed objections that the vaccine was not proven safe because it has received only emergency use authorization from the federal Food and Drug Administration. The court disagreed that workers were being coerced to get the vaccine, and stated that if they want to work in a hospital which is in the business of saving lives, they must abide by the hospital’s safety requirements.

Even if health care workers are required to get the vaccine, they still are permitted by federal law to request exemptions for medical or disability reasons, or for sincerely held religious beliefs. Secretary for Veterans Affairs Denis McDonough acknowledged that the department’s mandate does not override federal law, but said that the overall benefit of the mandatory vaccine program outweighs the small number of exemption requests that are anticipated.

Certainly the landscape has changed for senior living facilities that are considering implementation of a mandatory vaccine program for their workforce. Federal agency mandates and court decisions now lend more weight and credibility to such programs. Although they do not override existing legal exemptions, they give more support to facilities that have been on the fence about implementing mandatory vaccine programs.

If you have any questions about mandatory COVID-19 vaccine programs, please contact me or any member of the Barley Snyder Senor Living Industry Group.

DISCLAIMER: The information in this alert should not be construed as legal advice to be relied upon nor to create an attorney/client relationship. Please note that the reader’s or an industry’s specific situation or circumstances will vary and, thus, for example, an approach that is advisable in one industry may not be appropriate in another industry. If you have questions about your situation or about how to apply information contained in this alert to your situation or industry, you should reach out to an attorney.

The views expressed in this alert are those of the individual author and do not necessarily reflect the views of the firm or the firm’s clients. The response to the COVID-19 pandemic is particularly challenging, evolving and, in many cases, can be controversial. Any views expressed in this alert are not intended to advocate for or endorse a particular governmental response to the pandemic.