Bioethics Forum Essay
Vaccine Mandates for Health Care Workers Raise Several Ethical Dilemmas
The justification for Covid vaccine mandates for health care workers has increased dramatically in recent weeks due principally to the alarming spread of the Delta variant of the coronavirus. More than 50 health care organizations support vaccine mandates for all health care employees. The moral argument for the mandates is clear–getting vaccinated is a component of every health care worker’s ethical obligation to prioritize the health and well-being of patients. But what happens if some health care workers still refuse to be vaccinated?
This question has become a critical focus for the Empire State Bioethics Consortium of which I am a member, as well as the wider community of bioethicists and hospital medical directors. Removing unvaccinated health care workers from the bedside itself has ethical implications, particularly in rural and medically underserved communities.
Consider this oversimplified hypothetical: A hospital needs 100 health care workers, including clinical, housekeeping, dietary and support employees, to staff its 100 occupied beds, and half of the total staff refuses to get vaccinated (vaccination rates are less than 50% among nurses and some other health care workers). Under the hospital’s vaccine mandate policy, it has to remove half of its staff from patient contact and confront the impact of its decision while still needing to staff its 100 occupied beds. In this scenario, health care workers who refuse to be vaccinated would lose their jobs either temporarily or permanently. Excluded from this scenario are vaccine mandates, adopted by some employers, that allow unvaccinated health care employees to continue working if they have frequent Covid-19 tests.
To meet its ethical obligation to its patients, the hospital should start by moving all vaccinated employees—doctors and nurses, but also patient-facing workers who serve food to patients, sanitize their rooms, and otherwise maintain the safety of patient spaces — into the 100 occupied rooms. The hospital can then determine how many beds it can safely operate with vaccinated staff.
If there aren’t enough vaccinated employees to fill these slots, the hospital faces a morally vexing challenge. Should the hospital allow some of its unvaccinated staff to fill them? The objective should be to use only as many of the unvaccinated heath care workers who are qualified to fill patient-facing roles as is absolutely necessary to enable the hospital to provide care to patients who cannot be safely discharged.
The hospital may decide to permit unvaccinated staff to interact with patients—and require them to have frequent Covid tests–but only after it has tried everything else. This includes discharging patients whose condition presents a judgment call, patients who might safely go home but who, under normal circumstances, would be kept in the hospital to receive optimal care and monitoring. The goal must be to use the smallest number of unvaccinated health care workers as possible while still providing treatment that at least minimally meets the clinical standard of care.
If the hospital’s vaccinated workers cannot provide competent care to all of the patients who remain, the next ethical dilemma is deciding which patients the unvaccinated health care workers should be assigned to. From an ethical perspective they should only care for or interact with unvaccinated patients. The unvaccinated patients should be informed that the staff members who are taking care of them are unvaccinated and they should be advised of their right to leave against medical advice. They cannot be “discharged” in the conventional sense; doing so would be inconsistent with the standard of care, since those patients were not deemed dischargeable when the mandate was first implemented.
This approach is not going to be well-received by the unvaccinated patients. Some of them may have declined vaccination because they concluded that if everyone else is vaccinated, they don’t need to be. A few may be unable to be vaccinated for medical reasons. But, according to the doctrine of moral hazard, the unvaccinated and even the un-vaccinatable have a weaker moral claim to care from vaccinated health care workers than those who are vaccinated. This doctrine holds that hospitals ought not create an obligation to patients, the risk of which is born by the hospital’s employees. Vaccinated staff should only be obligated to care for unvaccinated patients in emergencies.
Vaccinated patients deserve to receive care from vaccinated staff. This is a moral judgment to be sure. The hospital is effectively, though not intentionally, penalizing unvaccinated patients by assigning unvaccinated health care workers to care for them. It is true that the hospital is also placing unvaccinated staff at greater risk because they are in a constructed work environment where everyone they come in contact with–coworkers and patients–are unvaccinated. But, consistent with the legal doctrine of employment at will, it is their choice to work in that environment in the first place.
Once a hospital has put all of its vaccinated employees to work in the most important patient-facing functions, and it has brought in only as many of its unvaccinated staff as it must and assigned them to take care of unvaccinated, non-dischargeable patients, it will confront the most challenging ethical dilemma: assigning unvaccinated staff to vaccinated patients or closing beds and discharging those patients who should not be discharged, even under a crisis standard of care.
The circumstances described in this hypothetical scenario will require hospitals to do two types of triage. First, they will need to triage all patients in the hospital when the vaccine mandate is initiated to determine who can be managed without hospitalization. This is no simple clinical or ethical task. After discharging all those who can safely be discharged (and treated as outpatients or with telemedicine and home care), a hospital that cannot safely staff all its beds will have to discharge some patients who unquestionably need to be hospitalized, some of whom are vaccinated and some of whom are not.
Should the hospital first discharge the vaccinated or the unvaccinated? Where should the un-vaccinatable go in the order? Given the ethical imperative to implement vaccine mandates as a condition of hospital employment, it would be intellectually dishonest not to prioritize the treatment of patients who are willing to meet their care providers halfway and get vaccinated if they are able to. This is true even though the unvaccinated patient may actually be at greater risk of morbidity and mortality.
David N. Hoffman, JD (@ethicsoncall), is a lecturer in bioethics in Columbia University’s Bioethics Masters and Certificate Program, and General Counsel at Claxton Hepburn Medical Center. The author expresses his deep gratitude to his Columbia students and colleagues, Karin Sobeck and Michael Menconi, for their thoughtful comments on this essay.