LGN Partner Susan Ellingstad featured in StarTribune

2021-06-21T13:26:55-05:00Jun 21, 2021|

Following a closely watched legal battle over a COVID-19 vaccine mandate for staff at a Houston health system — a battle that the hospital won — no hospital or nursing home in Minnesota has imposed a COVID-19 vaccine mandate on its workers, people in the industry say.

Though vaccine mandates appear legal, trade groups representing hospitals and nursing homes in the state are not urging their members to implement them now. The Minnesota Department of Health hasn’t taken a position.

“That should not be construed to suggest that it isn’t incredibly important that people be vaccinated,” MDH spokesman Doug Schultz said in a statement. “It is VERY important to get everyone vaccinated.”

Minnesota reached a vaccine milestone last week, surpassing 3 million residents with at least one dose of COVID-19 vaccine. Surveys by the U.S. Census Bureau show Minnesota has one of the nation’s lower vaccine hesitancy rates, at about 8% of the state population. The national rate is nearly 11%.

Federal data show that as of June 6, an average of 61% of staff members in 170 Minnesota nursing homes were fully vaccinated, with rates ranging from 13% to 89%.

At Hennepin Healthcare, about 85% of employees had received at least one dose of COVID-19 vaccine as of June 7, while 81% of staff at Mayo Clinic’s facilities in the Midwest have had at least one shot, health system spokeswomen said. At Allina Health, more than 70% of employees are two weeks past their final shot.

Yet observers in health care around Minnesota expect to see vaccine mandates for employees in health care settings eventually — especially if the Food and Drug Administration grants full approval for a coronavirus vaccine.

“I expect there will be a widespread movement toward vaccine mandate, just like for influenza vaccine. I’m certain this is being discussed at all health systems in the state,” said Dr. Andrew Thompson, an infectious diseases physician with St. Luke’s health system in Duluth.

All three COVID-19 vaccines available commercially in the U.S. were allowed onto the market under “emergency use” authorizations.

Pfizer and BioNTech started their FDA application process for full approval of their COVID-19 vaccine on May 7, and Moderna did the same for its vaccine on June 1.

Organized labor groups have opposed past vaccine mandates.

“We are encouraging our members to access the [COVID-19] vaccine. But it should be voluntary,” said Jamie Gulley, president of SEIU Healthcare Minnesota, which has 35,000 members in hospitals, clinics and long-term care. “The way you get people to do it is through education [and incentives] … not heavy-handed mandates that will increase resistance and skepticism and could be counterproductive.”

Among all Minnesotans, the top reasons cited for vaccine hesitancy are that respondents don’t believe they need the vaccine, are concerned about side effects, and they don’t trust it, the Census Bureau found. Workers might also be concerned about losing pay if they feel unwell after the shots, Gulley said.

Mandates for the flu vaccine have been controversial in Minnesota.

In 2017, the United Steelworkers labor union sued Essentia Health in federal court, claiming workers it represented at the Duluth-based health system were being improperly forced to get flu vaccines some did not want.

The hospital system argued its policy was legal and could be imposed without collective bargaining. The policy allowed workers to opt out of flu vaccination if they had a legitimate medical or religious reason.

The judge in the case declined to issue a preliminary injunction halting the vaccine mandate. Days later, Essentia fired 50 workers who refused the flu vaccine, and the union dropped its lawsuit, losing the dispute in arbitration the following year.

The Equal Employment Opportunity Commission (EEOC) says federal law does not prevent an employer from requiring all employees to be vaccinated for COVID-19.

But vaccine mandates must offer reasonable accommodations for disabilities and sincerely held religious beliefs that prevent vaccination. Such accommodations might include moving the employee to a non-patient-facing role or requiring protective equipment.

An allergy to vaccines, documented with a legitimate physician’s note, could qualify for a vaccine exemption under the Americans with Disabilities Act, said Susan Ellingstad, a partner in employment law at Lockridge Grindal Nauen in Minneapolis.

Harboring skepticism about the vaccine’s safety likely would not qualify for an exemption from a workplace mandate, she said. That doesn’t mean an employer should disregard workers’ concerns.

“In listening to employees and their concerns, it may be something that an employer would choose to accommodate,” Ellingstad said.

Those who are pregnant might also try to seek a medical exemption. Ellingstad said it’s not clear pregnancy meets the legal requirement for exemption, but if someone’s doctor advised them to avoid vaccination while pregnant, “I would defer to that.”

In Houston this month, a federal judge sided with the executives at Houston Methodist and ruled that the health system could legally require its nearly 25,000 employees to take a COVID-19 vaccine while still under emergency-use authorization.

The Houston Chronicle reported June 9 that 178 employees were placed on unpaid suspension and will face termination if they don’t get vaccinated. Another 600 received deferrals or exemptions.

Since then, health systems in Indiana, Maryland, New York, Pennsylvania and Washington D.C. have made COVID-19 vaccination a condition of employment, the Associated Press reported.

But employers may be wary of irking employees while many are facing workforce shortages, especially in long-term care. Patti Cullen, president of nursing home trade group Care Providers of Minnesota, said several members tested the waters early on by requiring job candidates to be vaccinated.

“The results were not positive,” Cullen said. “They ended up losing a lot of potential new employees. … And they dropped it.”

This article originally appeared on the StarTribune website.

Go to Top