HJNO Mar/Apr 2022

VACCINE MANDATES 22 MAR / APR 2022 I  HEALTHCARE JOURNAL OF NEW ORLEANS   Court, hold EO 14042’s vaccine mandate and other components to be legal, enforce- ment of such requirements could not feasi- bly begin until sometime in late Summer or Fall 2022. But, given the composition of the courts hearing those appeals, proponents of the federal contractor mandate should not hold their breath that it will be revived, since all signs point to EO 14042 following the same fate as the OSHAETS. Although the federal contractor mandate is currently not in effect, healthcare employ- ers should consider carefully whether they have entered into any contracts with fed- eral agencies since Oct. 15, 2021, that contain language regarding COVID-19 workplace safety measures — including any provisions voluntarily agreeing to adopt vaccination or testing requirements. If so, it is advis- able to consult with legal counsel regard- ing whether any such agreements remain enforceable despite the legal challenges to EO 14042. RECENT LOUISIANA SUPREME COURT RULING ON OCHSNER VACCINE MANDATE Ochsner Health, Louisiana’s larg- est non-profit, academic healthcare sys- tem, previously passed policies requiring its employees across the state to either become vaccinated against COVID-19 by Oct. 29, 2021 (or obtain a valid religious or medical exemption) or face termination. A bevy of lawsuits sprung from this new policy, filed by approximately 75 current Ochsner employees of Ochsner Lafayette General and Ochsner LSU Shreveport. In early December 2021, Ochsner announced that 280 employees had been fired for fail- ing to comply with the COVID-19 vaccine mandate, and that number did not include the plaintiffs in the pending lawsuits, whose employment was not terminated due to the ongoing litigation. Following a panel of three judges in Shreveport issuing a temporary restrain- ing order preventing Ochsner from enforc- ing its policy permitting termination of unvaccinated employees, the cases filed by employees were consolidated and argued before the Louisiana Supreme Court in early January 2021. On Jan. 7, the State’s highest court ruled that Ochsner has the right to terminate employees who failed to comply with its vaccine mandate. The Court rejected the plaintiffs’ argument that the vaccination mandate was prohibited by Louisiana’s medical informed consent law, allowing adults to decline medical treat- ment, holding that because there is no doc- tor-patient relationship between Ochsner and its employees, the informed consent law does not apply. Instead, the Court posited that under the “at-will” employment doctrine, Och- sner has a legal right to fire anyone at any time and for any lawful reason, including an employee’s decision to not get vaccinated. This ruling by the Louisiana Supreme Court could lay the groundwork for other employ- ers across the state to begin implementing mandatory COVID-19 vaccination policies for their workforce. TAKEAWAYS FOR THE HEALTHCARE INDUSTRY As you may have gathered by now, the most important steps that healthcare administrators and employees can take at this point are to speak with the management teams at your facilities about what vaccina- tion-and-testing programs are currently in place and what is needed for compliance. From the director’s or manager’s perspec- tive, you should be evaluating any existing plans for obtaining proof of vaccination for employees, evaluating requests for exemp- tions, and notifying employees of compli- ance deadlines. These issues may require human resources involvement if employ- ees are nonresponsive or noncoopera- tive with the vaccination process or if they engage in conduct that violates workplace rules such as submitting fraudulent vac- cination or testing records or knowingly false information regarding a claimed medical or religious exemption. Addition- ally, employee requests for medical leave to recover from vaccine-induced symp- toms, or from COVID-19 itself, should be monitored closely to ensure that employees are returning to work promptly after their symptoms improve and they receive a nega- tive test. Lastly, as always, attempt to resolve any ambiguities or confusion in your com- pany’s policies, training, and enforcement procedures by reviewing information from state and federal health authorities and con- sulting with your legal counsel. n “The most important steps that healthcare administrators and employees can take at this point are to speak with the management teams at your facilities about what vaccination-and-testing programs are currently in place and what is needed for compliance.”