A Tale of Two Vaccine Mandates

Unlike the private employer mandate, Biden’s mandate for nursing home staff would both protect the most vulnerable and pass constitutional muster.

On September 9, President Joe Biden escalated the pandemic battle between individual rights and collective public health after announcing several vaccine mandates for a variety of employer groups, including federal workers, federal contractors, health care workers, and workers with firms of 100 employees or more.

Throughout the pandemic, many conservatives and libertarians have viewed vaccine mandates in general with skepticism and even disdain. They see the mandates as an infringement on individual liberty that does not square with the Founders’ intent and the U.S. Constitution. But not all mandates are created equal. Two of Biden’s announced mandates—one for all nursing home staff announced in August and the other for employers with more than 100 employees—could not be more different on both constitutional and practical grounds.

By focusing on vaccination rates in nursing homes, Biden can implement a vaccine mandate with a laser-like approach to a clearly defined problem and succeed in protecting the most vulnerable, all while passing constitutional muster. By contrast, his employer mandate looks unfocused, arbitrary, and forced—like throwing at a dartboard blindfolded—with a policy that is likely to face constitutional hurdles.

On August 18, Biden announced a vaccine mandate for all staff working in nursing homes as a condition for receiving Medicare and Medicaid reimbursement. The threat of withholding such funding is a real one—Medicare and Medicaid combine for 70-80 percent of nursing home revenue nationwide

To carry out the order quickly, Biden has tasked the Centers for Medicare and Medicaid Services (CMS) to issue an interim final rule, bypassing the longer and more common rulemaking process. The administration originally planned to have the final rule released this month. But following Biden’s larger vaccine mandate announcement on September 9, nursing homes will now be lumped in with other health care providers that receive the same federal dollars. Thus, it could be weeks longer before the rule is released. 

Details are slim on the rule, but CMS has indicated it will use a phased-in penalty structure for nursing homes that do not comply with the mandate, rather than withdrawing federal funding from the outset. Enforcement actions would likely begin with notifying noncompliant facilities, followed by monetary penalties, before withdrawing reimbursements or removal from the Medicare and Medicaid program.

As for the authority Biden will use to justify this vaccine mandate, the Social Security Act grants broad powers to the secretary of health and human services to implement “requirements relating to the health and safety of residents or relating to the physical facilities thereof as the Secretary may find necessary.” Nursing homes already have a COVID-19 testing requirement for residents and staff that began more than a year ago based on this authority. Based on this provision alone, the administration stands on firm ground to mandate vaccination of nursing home staff at the federal level.

The legal authority to mandate vaccination for staff among private employers who don’t receive federal funding is another matter. While we know the mandate will be enforced through an OSHA emergency temporary standard (ETS), there’s a lot we don’t know. For instance: What will constitute noncompliance, how will employers verify compliance among their workers, and what will trigger the penalties that the administration has said will be $14,000 per violation?

It’s a certainty that smaller employers will sue to challenge the mandate. Constitutional scholars have argued from both sides on issues ranging from separation of powers to whether OSHA’s ETS rulemaking is broad enough to compel vaccination. There is also a question as to whether the testing requirement, which kicks in should an employee refuse vaccination, would be legally too burdensome for employers since the administration has said businesses or employees will be expected to shoulder the cost.

So, while the mandate in nursing homes will come and go without much legal fanfare, the battle over the employer mandate has only just begun. Even if it survives all legal challenges, implementation of the employer mandate may be delayed until long after it’s needed.

Legal considerations aside, the nursing home mandate makes more sense from a practical standpoint. Above all, the mandate for nursing home staff recognizes the high risk of severe illness and death among nursing home residents and would be the last and final step in eliminating the pandemic’s grip on nursing homes.

No one can argue that COVID-19 has not presented the greatest threat to long-term care (LTC) residents throughout the pandemic, more than any other group in society. Indeed, we at the Foundation for Research on Equal Opportunity argued that the most underappreciated aspect of the virus was not just the effect on older populations, but that at one point as much as 45 percent of COVID deaths occurred among LTC residents, despite such residents constituting 0.6 percent of the U.S. population. 

Coming out of the spring, it was assumed the pandemic ended for nursing homes. Residents and staff were among the first to be eligible to receive the vaccine, and cases and deaths quickly plummeted following the nationwide LTC vaccine campaign.

Then along came the Delta variant. With early reports suggesting that vaccinated people were just as likely to pass on the virus as they would be were they unvaccinated, many conservative pundits argued that vaccination should be entirely a personal choice. If this were true, there would be no point in mandating vaccines, especially among nursing home staff, whose mortality rate has been low like the rest of the younger working age population. 

But the data simply doesn’t support this assertion when considering current nursing home residents’ rates of infection and death. The unvaccinated are still infected more often and evidence suggests they do not clear the virus from their system as quickly. Given a vaccination rate of 63.7 percent among nursing home staff as of September 5, the danger to residents from the more transmissible Delta variant still exists and is growing.

Cases and deaths among nursing home residents have risen faster than the working-age population to which Biden’s employer mandate would apply. While cases have risen at similar rates both inside and outside nursing homes from mid-June through the end of August, the number of deaths in nursing homes has risen more than 10.5 times, compared to 6.6 times among the working age population. During the week ending August 29 (the latest for which we have reliable mortality data), COVID killed more than 45 nursing home residents per 100,000—more than 23 times the rate of the working-age population. This is occurring even though over 84 percent of nursing home residents have been vaccinated.

To blunt the advance of COVID in nursing homes, a mandate would need to achieve a relatively low number of vaccinations. With nursing home staff vaccinations reaching nearly 64 percent, the number of people left to vaccinate is no higher than 400,000. An employer mandate applied to millions will require more time, effort, and money to accomplish.

A legitimate concern among nursing home operators is that with a vaccine mandate, they will lose staff unwilling to roll up their sleeves for the inoculation, making an already acute industry-wide staffing shortage even worse. The data we have suggests the concern is largely unfounded. Defections at other health care systems implementing their own mandates have been minimal, especially when facility operators address staff concerns by increasing outreach and improving working conditions. And now that Biden’s mandate will include all facilities that accept Medicare and Medicaid, there is little place for a recently separated nurse or personal care aide to go in the health care profession. After all, how do you explain to a potential health care employer that despite your previous job being dedicated to protecting and looking after the most frail, you decided not to get vaccinated?

There is one more reason to require vaccination of nursing home staff that is often overlooked. Prior to the widespread availability of vaccines, nursing homes had only one tool to protect residents: lockdowns. But it came at a price. Studies now show that tens of thousands of residents died during the pandemic over and above what was expected, after accounting for COVID deaths. In other words, LTC experts suspect that thousands died because of restrictions that cut off residents from their friends and loved ones and hastened their physical and cognitive decline.

As the virus waned earlier this summer, facilities opened back up to visitors with fewer restrictions. Since then, evidence suggests the Delta variant is spreading faster in facilities with low staff vaccination rates. This spread threatens to return LTC facilities to more restrictions, less social interaction, and forced isolation.

The central lesson of the pandemic is to protect those who are most at risk of severe illness and death from COVID while allowing the rest of society to function. When Biden initially announced a targeted mandate for nursing home staff in August, it appeared Biden had learned this lesson and applied it. But by later pushing for a legally fraught vaccine mandate among private employers—whose workers experience far less risk than nursing home residents—it is now clear the lesson didn’t stick.

Gregg Girvan is a health care research Fellow at the Foundation for Research on Equal Opportunity.