Employers considering vaccine mandates have more to worry about than worker compensation claims, expert says

Debates over COVID-19 vaccine mandates are intensifying in Florida nursing homes and other health care settings. Some employers, including several Medicaid plans, are using incentives such as gift cards to encourage vaccinations among members, in an attempt to reach the state goal of vaccinating 50% of beneficiaries age 50 and older, according to Health News Florida. 

The Association for Health Care Administration (AHCA) did not immediately respond to State of Reform’s request for comment or provide the number of vaccinated beneficiaries.

 

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Audrey Brown, president and CEO of the Florida Association for Health Plans, commended the plans’ incentive strategies:

“Medicaid managed care plans are using a myriad of incentives and educational initiatives in an effort to vaccinate their members. There is vaccine hesitancy among some of Florida’s population, and the most vulnerable are in Florida Medicaid – so it is incredibly important for plans to combat hesitancy, be innovative in educating their members on their choice to get vaccinated – acknowledging that there is no one size fits all approach.”

Employers have a right to impose vaccine mandates on their workers unless they have a valid religious or medical exemption, said Susan St. John, an attorney at the Florida Healthcare Law Firm (FHLF). FHLF represents physicians, hospitals, and other health care businesses. Many of their clients, said St. John, are adamant about reducing patient and staff exposure to COVID-19. However, St. John acknowledged that is not the case across all health care settings.

“You have a whole segment of folks that, even in the health care sector, and [are] mostly in your nursing population, or your companion caregiver population. They have a distrust of the vaccine. And they don’t want to get it. And those are the workers that you’ve got to have in nursing facilities and home health agencies, to keep them running well and keep patients taken care of.”

One reason employers may be hesitant to impose vaccine mandates is for fear of litigation, St. John said. For example, if an employee has a negative health reaction after being vaccinated, they can then file a worker compensation claim. Worker compensation amounts differ depending on the severity of the injury or disability, but the maximum weekly temporary total disability (TTD) benefit in Florida was $971 in 2020. 

However, St. John said the legal consequences of an employee not getting vaccinated might be worse.

“To me, the other side of the coin is you send an unvaccinated worker, and that worker has COVID — doesn’t know it, but they have COVID — and they go into a situation where they’re providing care, or serving the public. And they infect somebody, I think you’ve got another issue,  especially when you’re looking at the healthcare industry.”

According to a conversation with a colleague from AHCA, St. John said the agency has lessened liabilities for vaccine manufacturers. In a June memo to participating plans, state Medicaid director Tom Wallace said the state would consider lowering liquidated damages against health plans if they reached the 50% beneficiary benchmark, according to Florida Health News.

Other employers will have to consider the risks of mandating the vaccines or not, St. John said. 

“The public really has to be well educated, and policymakers have to really think about, ‘How do we educate the public?” Like what they’re doing now in trying to protect the manufacturers, ‘How do we protect employers that comply with a mandate?’”

On Monday, the Food and Drug Administration (FDA) announced full approval for the Pfizer vaccine for individuals 16 years and older. The FDA has authorized the vaccine for emergency use since December 11, 2020, which is still the case for individuals aged 12 to 15. St. John expects approvals for the Moderna and J and J vaccines to follow suit.