Refusing Vaccination Leaves Elderly Patients at Risk, But Is There Any Way to Push Back?
On top of worries about Maryland’s sluggish vaccine distribution, scientists and public health advocates have identified another obstacle to reaching herd immunity: Nationwide, less than 40% of nursing home staff have accepted COVID-19 vaccines offered to them.
This figure, released by the Centers for Disease Control and Prevention (CDC) at the beginning of February, suggests we may have an uphill battle against the pandemic for months to come. The facilities housing some of our state’s most vulnerable individuals will not be safe if over 60% of their workers refuse the vaccine.
While all residents and staff members at long-term care facilities are eligible for vaccination in Maryland, it’s hard to say how many of these individuals have faced structural barriers to getting the vaccine. Combined with the ranks of hesitant staffers, such hurdles mean the vaccination rates in nursing homes aren’t anywhere close to the necessary levels for herd immunity. A lack of communication from the previous administration and a fast-tracked vaccine creation and approval may explain some of this caution, but should healthcare workers be able to turn down the vaccine when doing so could impact the patients they care for?
Studies Are Clear: The Vaccines Are Safe and Highly Effective
One of the biggest concerns among those who do not want to be vaccinated is the potential for side effects. Often spurred by sensationalized news coverage, some individuals have come to believe they’re better off getting COVID-19 than the vaccine.
This is false, as plenty of public evidence shows. Both the Pfizer-BioNTech and Moderna vaccines underwent 3 phases of trials before they were submitted to the FDA. The teams behind these vaccines published their results in peer-reviewed journals (which means non-affiliated scientists looked at and verified their work) and some of their data is even available to the public online. Skeptics have had plenty of opportunities to evaluate the merits of pharmaceutical companies’ work, yet no one has presented evidence the vaccines do not work as promised.
Further, the government tracks adverse side effects and is also monitoring many who have already received the vaccine to verify its efficacy and safety. The news surrounding both vaccines is overwhelmingly positive, even in the face of newer strains of COVID-19 that may be more dangerous.
Infection Control in Nursing Homes Is a Longstanding Problem
Unfortunately, nursing home staffers’ refusal to get the COVID-19 vaccine is not entirely unprecedented. A study that spanned the 2017-18 flu season found these workers were less likely to get an influenza vaccine than other healthcare workers. This is especially worrisome because nursing home residents are more likely to be hospitalized or die from the flu than the average American. However, it signals the disinterest in getting the COVID-19 vaccine is not a one-off, but part of a larger trend.
This indifference toward vaccines is a serious risk that must be addressed. Nursing home workers may believe they are relatively safe from COVID-19 because they do not fall into high-risk categories, but as we covered last summer, staff members are a known transmission factor for the disease. They may be less likely to experience symptoms or serious illness themselves, but they can still spread the virus to the high-risk patients they serve.
Perhaps these risks could be minimized by strong infection control policies, but nursing homes constantly fall short of minimum recommendations. In 2020, 64 Maryland nursing homes were cited for not doing enough to protect residents from COVID-19. While this means nearly 1 in 3 facilities did not have sufficient infection control, this statistic is actually an achievement; in the 3 years before COVID-19 hit, 61% of nursing homes in the U.S. were cited at least once for infection control deficiencies. Mixing unvaccinated staffers with lax sanitation policies is an outbreak waiting to happen.
Can Nursing Homes Be Held Accountable for Unvaccinated Workers?
Because COVID-19 is so new, the courts have not yet addressed many of the legal questions it has raised. However, it is possible a nursing home resident or their family could sue if there was a clear case of worker-to-patient transmission.
Can Nursing Homes Require Vaccination?
Precedent says that yes, companies can require employees to be vaccinated. They must respect religious objections and adhere to the Americans with Disabilities Act (ADA), but many healthcare facilities already ask workers to be vaccinated for certain diseases.
Further, employers must provide a safe workplace; in situations where employees work closely, a COVID-19 vaccine might be necessary to prevent sickness. The same principle applies to industries like healthcare and hospitality, where workers are in contact with consumers. If a serious case of COVID-19 can be traced back to a business, it may be forced to pay a workers’ compensation claim or fight a lawsuit.
Therefore, requiring vaccination makes sense for many businesses. Any nursing home that took this step but failed to verify employees’ vaccination status would be leaving itself open to litigation. Whether a court would entertain a suit against a facility that failed to require inoculation remains to be seen.
Could My Suit Be Blocked by Immunity Laws?
When Maryland declared a state of emergency, the Public Safety Immunity Act kicked in. This statute, like the CARES Act passed by Congress, shields healthcare providers against lawsuits in some situations. However, it does not unduly burden plaintiffs who were wronged by negligent caretakers.
The Public Safety Immunity Act blocks lawsuits against facilities acting in good faith when a health emergency proclamation is in place. However, it only shields against lawsuits brought by patients who were being treated for COVID-19 at the time the negligence occurred. A patient who contracted COVID-19 from an unvaccinated worker therefore would be able to bring a lawsuit despite this legislation.
The CARES Act goes further, providing immunity in cases including “the prevention of COVID-19.” This could be a barrier—but the act does exclude from immunity any healthcare provider that acted with “gross negligence […] or a conscious flagrant indifference to the rights or safety of the individual.” Without precedent to stand on, it’s hard to say whether refusing a vaccine for a deadly disease counts as gross negligence or flagrant indifference by a worker who knows their patients could die from an infection.
We Can Answer Your Questions About Nursing Homes and COVID-19 Liability
The COVID-19 pandemic has brought uncertainty in many areas of our lives, and the law is no exception. Many questions about healthcare liability will be working their way through courts within the next few years. The answers may be slow to come, but you can be assured our team at Brown & Barron, LLC will continue to fight for patients who contracted COVID-19 because their nursing homes did not provide proper protection.