Cardiologist assistant listening heart of senior woman with stethoscope during consultation and wearing face mask against coronavirus outbreak. Medical examination for infections, disease.

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.

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  1. Respectfully, the assumed ethical mandate to vaccinate ignores what was happening before the vaccine was available, and what happens with other transmissible diseases. In this time of breakthrough infections among the vaccinated, all healthcare workers are compelled to use appropriate personal protective equipment (PPE) when providing care. It is assumed that adequate supply and proper technique are sufficient to protect provider from patient and vice versa. I would argue that the mandate is to protect the patient from possibility of transfer, and the organization’s responsibility is to provide sufficient supply of effective equipment, training and staff. Where it gets challenging is the reality that unvaccinated persons may behave in a manner that exposes them to the virus in their life in the community outside of the health care environment. Unfortunately, the same can be said for breakthrough cases. We have mandates on PPE use internally, and in our organization have 15% of all COVID infections among the fully vaccinated including employees. The question is whether we have an organizational responsibility to mandate vaccination for exposure outside our employment environment or whether there is a professional mandate to become vaccinated based on community exposure, beyond the obligation to carefully and consistently use PPE correctly. The resistance heard locally, from professional and community alike, is due to the less predictable nature of the virus; the perception that it is not the same type of threat as polio, measles, smallpox, etc.; lack of trust in public health officials due to rapidly changing and sometime contradictory mandates; and the strident language of politicians in regard to the restrictions and vitriol against their opponents among all declared parties. Our efforts to reinforce vaccine efficacy, diminished disease severity among breakthrough cases, extremely rare negative reactions, and lack of apparent teratogenic effect have not been convincing to the doubtful. In the face of uncertainty, “do nothing” appears less threatening to many rather than “try the vaccine” which is disturbing for our public health adherence in the future.

    1. Steve, I agree with you across the board. that is why I wrote this essay. Moral hazard and distrust of institutions have been amplified in many ways during the pandemic. Your observation about inadequate PPE and training for healthcare workers is particularly disturbing, especially for those in long-term care, home care, and hospice. We need to do better. This conversation is a small start.

  2. It was a time when a wound involving a major artery led to the imputation of the limb. We know now how to repair the artery and save the limb. A surgeon that can not or will not learn to save the limb is deemed unqualified to care for such wounded patient. And so, an unvaccinated health care worker , at the time of a potentially deadly pandemic become “unqualified” to care for vulnerable members of society, the hospitalized patients. Form an ethical point of view, health care workers that can not or will not be fully vaccinated should recuse themselves till the pandemic has subsided. And from an ethical point of view, their regulatory body should declare them unqualified to work under the current circumstances

    1. Michael, I could not agree more. And yet, as I argued in my essay,, removing unvaccinated, and particularly un-vaccinatable healthcare workers will have its own problematic impacts, most severely in rural and underserved communities. That is why we in the clinical and bioethics professions need to resist the call for “one size fits all” solutions. Hospitals that have achieved high rates of vaccination among their staff should be able to stick with their successful solutions.

  3. Your article offers a solution for dealing with the hard-core non-believers and anti-COVID facts/vaccines refusers.. It seems outrageous that they could present themselves to an E.D. and therefore demand to be treated.

    Your proposal is, at least, an ethical one, where the unvaccinated can be treated. I agree that their care should be lower-priority. If resources are constrained, they are triaged below those people who followed public health guidelines. There should be room for flexibility, for people who were unable to go to a vaccination site, for example. Or people who might not have access to reliable medical care or information, and are confused or indecisive.

    I also agree that unvaccinated health care workers should be removed from patient-facing work amongst vaccinated patients. Nobody is compelling health care workers to continue to work in an environment that is dissonant with their values or beliefs. Let them find work elsewhere! This is true for every employment relationship I can readily imagine. If you are at odds with the values and rules set by your employer, find work elsewhere.

    Thank you for addressing this issue. We must resolve these matters as we learn from this current experience.

  4. This is a frightening position no matter how you approach it. Your ideas put forward are remarkable. You are correct that an all or nothing approach is not ‘it’ as vulnerable communities would be most impacted. All or nothing mandates, regardless of its ethical or moral grounds, do more to stoke the flames of those already weary of vaccine efficacy, mistrust of medical institutions and science behind it.

    As someone who works at a hospital that serves underserved populations and within a department that is having its own issues getting patient-facing staff vaccinated, it surprises me that there is not a health systems approach to handling vaccination status among their employees.

    Unvaccinated health care workers place themselves and communities at risk and consequently do harm to health care systems that employs them.

    De-incentivizing unvaccinated staff could be a long-term path forward. Life insurance is more costly when you have pre-existing health conditions. Why is there not a similar approach being considered for those placing themselves and others around them at risk? Allowing them to work following safety regulations (which should be followed regardless of vaccination status) AND penalizing risky behavior that directly impacts standard care is a step in the right direction. For example, increasing the cost of employee provided benefits, schedules that accommodate and prioritize vaccinated employees, charging for weekly testing, using personal time off to isolate after positive test results. Some in our department are throwing in the towel just because of the inconvenience of weekly testing!

    After months spent championing community residents and staff to get the COVID 19 vaccine with fact based science, and learning first-hand that a mandatory vaccine for a flight to the Caribbean convinced quite a few, I am convinced approaches like these can help us towards the elusive 70 percent and achieve workplace herd immunity.

  5. I find it troubling that most conversations regarding transmissibility only center around the term “vaccinated” rather speaking about “immunity” which includes vaccinated AND natural immunity. It is not ethical to mandate something for which one is already immune. It’s like putting someone on birth control with all it’s side effects when they’ve already had a hysterectomy.

    1. I sincerely welcome all comments, but I vigorously disagree with your assertion and conclusion. It is important that ethicists and the general public understand in very frank terms that your advocacy for treating natural immunity as being equivalent to immunity derived from vaccination is scientifically unsupported. The innate immunity that arises from contracting a coronavirus-2 infection is weaker than the immunity provided by vaccination. That is not my ethical judgment, it is the opinion of a microbiologist and critical care physician with whom I consulted to prepare this reply to your comment. Since there is no practical way to quantify the extent and duration of immunity afforded by infection it would be irresponsible to excuse healthcare workers from getting vaccinated on that basis, particularly given that we understand very little about how natural immunity influences the transmissibility of the Delta variant.

  6. Thank you for this excellent proposal and cogent argument for it. While complex, it’s practical, using incentives to put the burden back on the unvaccinated health care provider. Generally, we need to do just that — make not being vaccinated the hard choice, though still a choice. With the current data on the differences in infection/hospitalization/death (take your pick) between vaccinated and unvaccinated, it is surely a violation of professional ethics for health care providers to expose either their co-workers or patients to greater risk by not being vaccinated.

  7. Is it ethical to allow a surgeon, impaired from drinking an alcoholic beverage to operate….. Is it ethical to allow a non immunized health care worker to come in close contacts with vulnerable members of society….

  8. David,

    Thank you for your thoughtful discussion of the practical implications of a vaccine mandate. While I agree that there is a strong ethical argument to be made for mandatory vaccinations, particularly among healthcare workers, the principle of double effect implores us to consider the practical aspects of such a mandate. Whereas a university that mandates students be vaccinated to be on campus, it is possible for virtual learning to be an acceptable alternative for those who don’t comply.

    However, the reality of a “vaccinate or be fired” approach in the healthcare setting may have significant unintended downstream effects. These are likely not limited just to hospitals in rural settings. While in many hospitals, the majority of patient-facing staff are vaccinated, many of the people that we rely on to make our hospital run smoothly an efficiently may not be. What will happen if a significant percentage of our colleagues in environmental services, transport or central supply are forced to leave because they oppose the mandate?

    I believe hospitals must have a backup plan (such as yours) prior to making a vaccine mandate that will allow operations to continue smoothly. Otherwise, the mandate will run the risk of punishing those who are vaccinated, and more importantly, patients.

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