Florida healthcare companies’ dilemma: Follow U.S. vaccine mandate or state orders?

The Supreme Court has ruled. The Biden administration’s vaccine mandate on healthcare workers will go into effect.

Except Florida won’t do its part to enforce it.

The rule requires employees at federally regulated healthcare facilities like hospitals and long-term care facilities to be vaccinated. It conflicts with a state law passed in November that limited employers’ ability to mandate vaccines.

If healthcare companies decide not to abide by the Biden administration’s requirement that 100% of workers be vaccinated or qualify for an approved exemption, they risk losing Medicare or Medicaid funding. Both federal programs are major funding sources for healthcare providers.

If those companies enact the federal vaccine mandate without offering employees a series of broad, state-specified exemptions, firms with fewer than 100 employees risk a $10,000 state fine every time they fire a worker for being unvaccinated. For larger companies, the fine would be $50,000 per violation.

“This does put facilities in a dilemma,” Kristen Knapp, a spokesperson for the Florida Health Care Association, which represents nearly 600 long-term care facilities in the state, wrote in an email.

The state’s Agency for Health Care Administration has a role to play in enforcing the federal vaccine requirement, which the White House says applies to more than 10 million healthcare workers nationally. On Dec. 28, the Centers for Medicare and Medicaid Services directed the state agency to survey relevant facilities to ask whether they are complying with the federal rule.

DeSantis’ administration is refusing. In a Jan. 4 memo, agency secretary Simone Marstiller told healthcare providers her agency would not ask companies whether they were following the federal rule. Instead, the agency would follow state law.

Florida isn’t changing its policy

Thursday’s Supreme Court ruling doesn’t appear to change the DeSantis administration’s stance.

“The state of Florida is not going to serve as the Biden administration’s biomedical police,” Christina Pushaw, a spokesperson for DeSantis, wrote in an email Thursday.

Some state hospitals are preparing to follow the federal rule. Karen Barrera, a spokesperson for Tampa General Hospital, wrote in an emailed statement that the facility “will be required to comply.”

Other chains had mandates of their own before the state or federal government enacted mandate rules, although some paused or backed off them amid the legal wrangling. The hospital chain Ascension announced a mandate over the summer, only to back off of the policy in Florida following the November change in state law. Baptist Health South Florida reported that 94% of its workforce got vaccinated after it put a mandate in place in August.

Still others are reviewing their options in light of the Supreme Court decision. Central Florida’s Baycare and Miami’s Jackson Health System, which did not have mandates, are huddling to evaluate their options, according to spokespersons for those companies.

Florida Hospital Association CEO Mary Mayhew said in a statement that hospitals “must comply with this federal vaccine requirement” in order to ensure no lapse in critical Medicare funding.

At a news conference Thursday in Panama City, DeSantis called the federal mandate for healthcare workers “insane, especially given the ineffectiveness of these shots to actually stop transmission between individuals.” He also said the mandates were contributing to labor shortages in the healthcare industry, although he didn’t provide numbers.

Vaccine mandates could actually be helping to ease those shortages by ensuring infected healthcare workers are able to return to work faster than if they were unvaccinated and suffering more severe symptoms, said Marissa Baker, an assistant professor of occupational health at the University of Washington’s School of Public Health.

There’s also the risk that unvaccinated healthcare workers could spread COVID-19 in hospitals at a time when the omicron variant is driving record infection rates in Florida. Although the vaccines are not proving effective at stopping all transmission, they are still the most effective tool at the government’s disposal, said Derek Cummings, a professor and infectious disease epidemiologist at the University of Florida’s Emerging Pathogens Institute.

“Rather than saying, ‘If it’s not 100% effective, why use it at all?’ Another approach to take is ‘We’ll use that and other things,’ ” Cummings said.

The federal vaccine mandate does allow for exemptions based on a medical disability or a sincerely held religious belief. But the state’s law restricting vaccine mandates offers employees additional exemptions, including carve-outs for pregnancy or “anticipated pregnancy” and an exemption for those who have tested positive for COVID-19 in the past.

It’s unclear what, if any penalties, the state could face for not helping the federal government enforce its rule. A statement from a Centers for Medicare and Medicaid Services spokesperson did not address that question Friday.

However, the White House promised in a statement Thursday to enforce the rule. That could spell trouble for facilities that don’t abide by it. If facilities are not able to report that 100% of their employees have gotten at least a first dose of the vaccine or an exemption by Jan. 27, the federal government will begin issuing warnings. Eventually, if the facility does not comply with the rule, it could lose funding.

“Termination would generally occur only after providing a facility with an opportunity to make corrections and come into compliance,” two officials from the Centers for Medicare and Medicaid Services wrote in a Dec. 28 memo.

The Supreme Court on Thursday did clarify the situation for most other Florida companies when it blocked a different Biden administration vaccine mandate. That rule, enacted by the Occupational Safety and Health Administration, would have required companies with 100 or more employees to have workers get vaccinated or tested weekly.

State law limiting vaccine mandates will apply to Florida companies outside the healthcare sector.

Miami Herald staff writer Daniel Chang contributed to this report.

This story was originally published January 14, 2022 at 5:48 PM.