Florida hospitals make mandate decisions amid state fight against federal requirements

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The number of hospitals and health systems announcing COVID-19 vaccination mandates has continued to grow since CMS issued its regulation requiring healthcare facilities participating in Medicare and Medicaid programs to fully vaccinate all eligible staff members by Jan. 4. But recently passed state legislation limiting vaccination mandates, alongside ongoing legal challenges to federal requirements, have complicated decisions for Florida hospitals regarding employee vaccination.

Here, Becker's takes a closer look at the Florida legislation, the legal challenges to federal mandates, and which hospitals have already implemented or announced vaccination requirements.

Florida law attempts to curtail mandates

Florida Gov. Ron DeSantis signed legislation Nov. 18 designed to counter COVID-19 mandates, including the federal government's vaccinate-or-test mandate for businesses with more than 100 employees.

The Florida legislation, which was passed through a special session of the state legislature, prohibits vaccination mandates for private employers unless also providing various exemptions, which include medical or religious concerns; pregnancy or anticipated future pregnancy; and past COVID-19 infection, according to a news release from the governor's office. It also allows employees to opt out if they agree to periodic testing or wearing personal protective equipment. Businesses would have to cover the costs of testing and PPE for employees. 

The legislation also imposes a fine of $10,000 per employee violation for small businesses (99 employees or less) and a fine of $50,000 per employee violation for medium and big businesses (100 workers or more) that violate the state's mandate guidelines.

Additionally, the law prohibits local governments or government entities from implementing mandates, and Florida lawmakers have allocated $1 million for the state to study leaving the Labor Department's Occupational Safety and Health Administration, according to The New York Times.

The state government has framed the new legislation as a way to protect workers from job loss due to vaccine mandates.

States join forces to challenge federal mandates in court

OSHA issued an emergency temporary standard in early November outlining its vaccine-or-test requirements for employers with 100 or more employees.

Under the emergency temporary standard, businesses must put in place a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to be vaccinated or undergo regular testing and wear a face covering at work, OSHA said. Employers also must provide paid time off to workers to get inoculated and provide paid leave to employees to recover from any side effects.

But challengers seek to strike down the mandate on grounds that OSHA's emergency temporary standard exceeds the agency's statutory authority.

The U.S. Court of Appeals for the Fifth Circuit in New Orleans affirmed a halt of the mandate on Nov. 12, and challenges were subsequently consolidated Nov. 16 at the U.S. Court of Appeals for the 6th Circuit in Cincinnati.

Meanwhile, OSHA has suspended activities related to the implementation and enforcement of the requirements pending future developments in court.

OSHA's rule for businesses — which could ultimately end up reaching the U.S. Supreme Court, according to The New York Times — isn't the only federal mandate with legal challenges.

On Nov. 10, a coalition of 10 states sued the federal government to block a new CMS rule requiring vaccination for eligible staff at healthcare facilities participating in Medicare and Medicaid programs. Twelve additional states also sued over the mandate on Nov. 15, arguing that implementing the mandate exceeds the statutory authority of CMS.

Meanwhile, a federal judge on Nov. 20 denied Florida's request to block the CMS rule.

The CMS regulation is expected to cover more than 17 million workers in hospitals and other healthcare settings nationwide, including about 76,000 providers.

To comply with the regulation, healthcare facilities must establish a policy ensuring staff have received at least one vaccine dose before providing any treatment or other services by Dec. 6. Staff must be fully vaccinated by Jan. 4, and healthcare facilities are required to develop plans and processes to provide religious and medical exemptions and accommodations as appropriate. Healthcare facilities that do not comply could face fines or termination of their Medicare or Medicaid contract, although CMS said termination would be a last resort.

"While CMS cannot comment on pending litigation, the vaccine requirement for healthcare workers addresses the risk of unvaccinated healthcare staff to patient safety and provides stability and uniformity across the nation's healthcare system to strengthen the health of people and the providers who care for them," a CMS spokesperson told Becker's via email. "CMS knows that everyone working in healthcare wants to do what is best for their patients to keep them safe. Healthcare workers have a special ethical and professional duty to protect their patients. There is no question that staff in any healthcare setting who remain unvaccinated pose both direct and indirect threats to patient safety and population health. That is why it is imperative for healthcare providers to ensure their staff who may interact with patients are vaccinated against COVID-19."

Florida hospitals implement mandates in the face of uncertainty

CMS said the new regulation for healthcare workers preempts state laws and other federal regulation requirements. U.S. Solicitor of Labor Seema Nanda has also said the OSHA rules supersede state laws that prevent employers from implementing the mandate for businesses, according to CNBC.

However, amid challenges to the federal mandates, covered employers in Florida must create strategies for compliance as they potentially face tough penalties otherwise.

Nashville, Tenn.-based HCA Healthcare, a for-profit hospital operator with three divisions in Florida, announced in November that employees must be fully vaccinated against COVID-19 by Jan. 4, in accordance with federal vaccination requirements.

"To date, HCA Healthcare has encouraged our colleagues to get vaccinated against COVID-19 and made vaccines readily available, but we have not mandated vaccination. Even though several states in which we operate have taken legislative action to limit vaccine mandates, we are required to comply with recently issued federal healthcare regulations through CMS and will require vaccination for our colleagues who are covered by the CMS mandate," HCA said in a statement shared with Becker's on Nov. 18.

The company added, "More than three out of four of our colleagues are included in this category. If we do not comply with the CMS mandate, we will lose our ability to care for Medicare and Medicaid patients in the communities we serve."

HCA said the company has plans in place based on processes, best practices and knowledge gained from their operations in states that have already mandated vaccination. As of Nov. 18, most HCA workers were already fully vaccinated. HCA said it is working with employees to assist those that have not yet been vaccinated.

Other Florida hospitals have either used incentives to boost their vaccination rates among workers — rather than requiring vaccination as a condition of employment — or announced mandates, the Miami Herald reported.

Baptist Health South Florida, an 11-hospital system based in Coral Gables, adopted a mandate in August, and on Nov. 18 reported a 99 percent compliance rate among its 24,000 employees, according to the Miami Herald. The compliance rate includes 94 percent of employees who were vaccinated and about 5 percent who received an approved medical or religious exemption. About 120 employees, or less than 1 percent of Baptist Health's workforce, were noncompliant and resigned, Dori Alvarez, a spokesperson, told the newspaper.

At Hollywood, Fla.-based Memorial Healthcare System, which operates six hospitals and numerous care facilities in South Florida, a policy was announced Aug. 16 that awarded $150 to employees who took one of the three available vaccines by Oct. 1.

In the first month after the policy was implemented, the system's vaccination rate among employees climbed from about 61 percent to nearly 88 percent, Margie Vargas, Memorial Healthcare's chief human resources officer, told the Miami Herald. Vaccination was not a condition of employment at the system, and those who chose not to get vaccinated must mask up while indoors and attend meetings virtually.

Cleveland Clinic, which announced its mandate Nov. 12, reported a vaccination rate of 83 percent as of Nov. 22.

The health system said its Cleveland Clinic Florida locations are continuing planning efforts to ensure compliance with vaccination rules.

Ascension Florida, which operates more than nine hospitals in Florida and the Gulf Coast region, is also working to ensure compliance and has revoked the suspensions of unvaccinated employees, at least until there is more clarity around the Florida legislation and the CMS mandate.

The Florida Hospital Association did not provide an exact number of how many hospitals in the state are implementing mandates, but, in an email to Becker's, the association acknowledged that the situation is in flux.

"It is our understanding that the federal mandates and Florida's vaccine laws currently conflict. Despite the current lack of clarity on vaccine mandate enforcement, our hospitals remain committed to reducing risk through rigorous infection control procedures," said Mary Mayhew, president and CEO of the Florida Hospital Association. 

"This is a constantly evolving situation that is the subject of ongoing litigation. Until there is a judicial resolution, we expect most of our hospitals will comply with the federal rule to preserve access to timely quality healthcare for millions of Floridians who depend on Medicare and Medicaid."

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