Digital Debut

States Mandate COVID-19 Vaccine as Delta Surges

Five out of 20 of these states require ASC staff to take the shot

BY STEPHEN ABRESCH | AUGUST 2021

As the Delta variant of the COVID-19 virus sweeps across the country, hitting unvaccinated populations hard and resulting in severe spikes in hospitalizations, many states have sought additional tools in their fight against this most recent wave. While entities like health systems and universities had announced the use of vaccine mandates earlier in the summer, state governments only began pursuing similar policies at the end of July and beginning of August. Since that time, more than 20 states have either issued or announced upcoming vaccine mandates targeting various workers with the aim of increasing vaccination rates. Five states have included ASCs in their vaccine mandates.

As of August 24, 19 states—California, Connecticut, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Virginia and Washington—have issued vaccine mandates, typically focusing on state employees, teachers, staff in nursing and long-term care facilities and frontline healthcare workers. An additional three states—Colorado, Delaware and Vermont—along with Washington, DC, have announced that they will issue mandates in the near future, and New York has proposed emergency rules that would expand its current mandates to include additional facilities, like ASCs.

Of the active mandates, five include ASCs as one of the healthcare facility types at which staff must be vaccinated. California, the first state to issue a broad vaccine mandate for healthcare workers on July 26, included ASCs in the list of facilities impacted by the mandate, which required facilities to be in full compliance by August 23. Oregon followed with its mandate on August 5, New Jersey on August 6, Washington on August 9 and Rhode Island on August 17. All these mandates impact ASCs but the requirements, allowable alternatives and exemptions vary in each state.

California, New Jersey and Oregon all provide a testing alternative if a staff member at an ASC is not vaccinated. California and Oregon require weekly testing and New Jersey requires testing at least one to two times a week. The orders issued by Rhode Island and Washington are less compromising, allowing no alternative to staff being fully vaccinated. Both states prohibit unvaccinated staff from working in ASCs and other affected healthcare settings after October 1 and October 18, respectively. However, Oregon and Rhode Island both allow for medical exemptions, and Washington allows an exemption for both medical and religious reasons. Neither California nor New Jersey provide any allowable exemptions, medical or otherwise, from the requirements of their orders. The New Jersey and Washington orders grant impacted settings the ability to impose even more stringent requirements than imposed by the state, with language stating that nothing in the orders prevents facilities from doing so.

On the opposite end of the spectrum, a few governors and legislatures have prevented the use of vaccine mandates anywhere in their state, including in the private sector. Arizona Governor Doug Ducey (R) signed an executive order on August 16 preventing localities in the state from enacting their own vaccine mandates, and Texas Governor Greg Abbott signed an executive order August 25 prohibiting public and private entities from mandating vaccines. In addition, both Montana and Utah passed laws during their 2021 legislative sessions restricting the use of vaccine mandates. In Montana, the law prohibits requiring an individual to receive any vaccine whose use is allowed under an emergency use authorization (EUA), while in Utah the law prohibits a governmental entity from requiring an individual to receive an “emergency COVID-19 vaccine,” which is in part defined as a substance authorized by the US Food & Drug Administration (FDA) under an EUA.

Unlike the fights over masking mandates in Florida and Texas, the vaccine mandates have not yet created similar standoffs, but they have created controversy. Certain states have seen protests outside statehouses in response to the mandates and the pushback could grow larger as affected entities and institutions move to comply with the requirements. In many states the requirements do not take effect until later in the fall. That said, recent events might change the impact of restrictions in states such as Montana and Utah that have prevented vaccine mandates under an EUA from the FDA. On August 23, the FDA approved the Pfizer-BioNTech COVID-19 vaccine, meaning the vaccine is no longer under an EUA when being administered to individuals 16 years of age or older.

ASCA is closely monitoring vaccination mandates that impact ASCs through its members-only State Guidance on Elective Surgeries resource. Write Stephen Abresch with any questions.