COVID-19 vaccine mandates for health care workers: Does duty to patients trump right to refuse the shot?

Over the past three weeks, state after state has passed some form of mandate requiring health care workers to be vaccinated against COVID-19.

Health policy experts expect the trend to continue as the delta variant ravages the country, and it may even speed up if the Food and Drug Administration gives full approval to a vaccine, which could come within weeks.

Even for doctors and nurses whose mission is to protect the lives of their patients, the issue remains divisive. Does that duty to those patients trump their right to refuse vaccine?

At least 16 states require COVID-19 vaccine for some health care workers. In Arkansas, Montana, New Hampshire, North Dakota, Tennessee, Texas and Utah, there are prohibitions on such mandates, according to the National Academy for State Health Care Policy.

Texas Gov. Greg Abbott issued an executive order July 29 prohibiting local governments and state agencies from mandating vaccines. Officials in Dallas, San Antonio and Bexar County have sued to challenge Abbott's authority to prohibit safety-related ordinances.

A new mother in Austin experienced the conflict firsthand Wednesday. Her daughter was born at 2 a.m., and by dawn, a nurse was helping her in her postpartum room, where she was exhausted but thrilled as she held her baby.

Her obstetrician had assured her that most labor and delivery staff are vaccinated, but in a state where cases were up 34% in a week, she wanted to be sure, so she asked her nurse.

“Well, I can tell you, I’m not vaccinated,” the nurse at St. David’s HealthCare in Austin told her.

The mom’s blood ran cold. Not only did she have a newborn, she had a toddler at home who could not be vaccinated. Although the nurse was "professional and lovely," she was appalled and angry her baby and family weren’t protected in a health care setting.

Hours after giving birth, she mustered the energy to request a different nurse.

“I’m in this room where I’m not allowed to get up out of bed without help from the nurse who’s not vaccinated. What can I do?” the mom, who asked not to be identified while still in the hospital, told USA TODAY Wednesday morning. "How am I supposed to feel safe with my baby here?”

Later in the day, she and her baby were assigned nurses who were vaccinated. She bears no ill will toward her unvaccinated nurse but is frustrated by the system. “What about the safety of patients who aren’t in a position to ask?”

In a statement to USA TODAY, St. David's HealthCare said it has strongly encouraged COVID-19 vaccinations for all staff but does not require them. It follows all Centers for Disease Control and Prevention guidance on safety protocols as well as requiring masking of all staff, patients and visitors, officials said.

"If a patient makes a special request, we do our best to accommodate the request as long as care is not compromised in any way,” the hospital said in a statement.

The Texas order does not affect St. David's because it is a private company.

For states requiring vaccination, the first, and strictest, order was issued last week by California Gov. Gavin Newsom. It requires all health care workers to be fully vaccinated against COVID-19 by Sept. 30. Those without medical or religious exemptions who aren't vaccinated risk losing their jobs.

Wednesday, Newsom went further, requiring all California teachers and staff to receive COVID-19 vaccination or undergo weekly testing.

Most of the state mandates are issued as executive orders, said Hemi Tewarson, executive director of the National Academy for State Health Policy.

"A lot of state legislative sessions are over. Some only meet every other year. And it's much faster to do it as an executive action by a governor," she said.

Neither the president nor the federal government can mandate vaccines at the state level, said Dr. Howard Koh, a professor of public health at the Harvard Chan School of Public Health and former assistant secretary for health under President Barack Obama.

More than 140 hospitals and health systems have individually mandated COVID-19 vaccines for their employees, according to a list kept by Becker's Hospital Review.

Such mandates are widely supported by major health care groups such as the American Medical Association, American Nurses Association, American Academy of Pediatrics, Association of American Medical Colleges and National Association for Home Care and Hospice.

Koh expects more state mandates will follow.

"All states are watching what their peers are doing. The more it becomes the norm, the more other states and governors will follow," he said.

Because children under 12 can't be vaccinated, "people who are declining the choice of vaccination are endangering the health of young kids who have no choice. It’s all interconnected. These governors understand that very clearly," he said.

The devil is in the implementation details

The California mandate took effect last week and includes people who work in hospitals, nursing facilities, psychiatric hospitals, clinics and doctor's offices, as well as kidney dialysis centers, substance use treatment centers and hospices.

It's welcomed by many health administrators.

LifeLong Medical Care is a network of 15 clinics across three Northern California counties with more than 1,000 staffers. About 65% of them are fully vaccinated, said deputy chief medical officer Magdalen Edmunds.

"It's certainly something we've heard, that people were saying they were going to wait until it was mandated and then they'd get vaccinated," she said.

The network focuses on underserved and vulnerable communities hit hard by COVID-19. "Our staff are also the community and the families we serve," she said. The more of them who are vaccinated, the more it will be normalized and help the rest of the community understand the vaccines are safe, effective and necessary.

In California, small protests against the vaccination requirement have been held in Redding, Riverside, Loma Linda and San Diego.

Monday, dozens of protesters gathered at the opening of an expanded maternity pavilion and children's hospital at Loma Linda University Medical Center in Southern California.

Many of the rallies are organized via social media, and there is no official organization putting them together. Online flyers refer to "America’s Healthcare Workers for Medical Freedom," but no nonprofit group or political action committee by that name is registered.

The California Nurses Association, which represents 100,000 RNs in the state, "supports mandates with appropriate accommodations for those who have medical and religious needs" the group said in a statement.

The Service Employees International Union Local 521, which represents many hospital, home care and nursing home workers in central and Northern California, supports COVID-19 vaccination but wants to make sure workers are part of the negotiations on how shots are implemented.

"When workers are involved and have a voice in workplace health decisions, everyone including the public we serve, is safer," said Riko Mendez, SEIU Local 521 chief elected officer.

A strong legal case for mandates

The right of states to mandate vaccination goes back as far as 1905, when a Cambridge pastor named Henning Jacobson refused to be vaccinated against smallpox, which was required by law in Massachusetts, and was fined $5.

Henning's case made it to the U.S. Supreme Court, which upheld the authority of states to enforce vaccination laws "to protect the public health."

Medical and religious exemptions from COVID-19 vaccine mandates are available. The bar is higher for medical exemptions than religious ones, said Dorit Rubinstein Reiss, a law professor at the University of California Hastings College of Law in San Francisco.

"The standard isn’t whether an organized religion objects to vaccines but whether you as a religious person have a sincere objection," she said.

For example, the Vatican has said COVID-19 vaccines are acceptable, but if a Catholic said, "I feel differently," it would be the individual's personal belief that counted, she said.

One objection has been that COVID-19 vaccines were issued under an emergency use authorization by the Food and Drug Administration, rather than the usual full approval.

Last month, the Department of Justice said employers and public entities could mandate COVID-19 vaccines under emergency authorization.

Presidential adviser Anthony Fauci said Sunday that the FDA will issue full approval for the Pfizer-BioNTech COVID-19 vaccine probably by the end of the month.

"As soon as one vaccine is licensed, it’s going to be hard to argue against the mandate because you have at least one vaccine that’s accessible. It will make the objections much weaker," Reiss said.

It doesn't surprise Reiss that some states go with soft mandates, requiring either vaccination or testing.

"They’re calculating the cost of litigation versus the cost of an outbreak on-site," she said.

A higher bar for health

Health care workers are singled out for vaccination mandates because they are on the front line of caring for others, said Harvard's Koh. It's the same reason the COVID-19 vaccines were offered to them first.

"Protecting people's health is part of our mission, whether it's a doctor, a nurse, a nursing home provider or a home health aide," he said. "People don't want health care workers to be vectors of transmission when their work is to protect against disease."

If there's any group that needs to walk the walk, it's health care workers, said Rupali Limaye, a professor of public health who studies vaccine decision-making at Johns Hopkins University's Bloomberg School of Public Health.

"These are individuals whose mission is to save lives," she said. "So to me, of all places that should be requiring vaccines, it's them."

Contact Elizabeth Weise at eweise@usatoday.com

This article originally appeared on USA TODAY: COVID vaccine mandates for health care workers raise questions of duty