With the coronavirus pandemic showing no signs of ending, a senior living center in Kapolei mandated that all its employees get a COVID-19 vaccine by August or face termination.
That was bad news for Wendi Ortiz, certified nursing assistant at Ilima at Leihano, who is fiercely opposed to getting a shot but was denied a religious exemption.
“I’ll be terminated on August 7 if I don’t get vaccinated,” Ortiz said, adding that she doesn’t plan to change her mind.
“I’m frustrated and I’m very scared,” she said. “I don’t know where my funds are going to come from.”
The health care industry is grappling with how to handle employees who refuse to get vaccinated as the daily number of infections swings back up to triple digits largely due to the highly contagious delta variant. Most of the new cases are among unvaccinated people.
Hawaii health care vaccination rates are far higher than the national averages, according to the Healthcare Association of Hawaii. Skilled nursing facilities and other long-term care facilities in Hawaii are vaccinating an average of 81% of their staff and 93% of their residents.
The state’s main provider networks have so far declined to make it a condition of employment.
Ilima at Leihano made the COVID-19 vaccination mandatory on May 20 but gave staff a grace period of nearly three months. In an email, the facility said it was an effort to create the “safest environment possible,” but also provided information for people to apply for vaccine exemptions.
Ilima at Leihano executive director Mark Tsuda said it’s his moral and ethical responsibility to protect the residents, whose average age is over 86.
“You know, it’s a choice to take the vaccination and work in the company, or to find employment elsewhere,” Tsuda said.
According to AARP, 80% of those who died from the coronavirus were at least 65 years old. However, another study from the organization found that Hawaii has very few nursing home resident fatalities due to COVID-19 and according to Tsuda, his facility has not had a single resident test positive for COVID-19.
“A lot of that is due to our safety protocols as well as our surveillance testing,” Tsuda said.
At the height of the pandemic, residents and staff were tested weekly for COVID-19 infections and are currently tested every other week. He said that most residents barely leave the facility and that the highest chance of the virus entering the community comes from employees that come and go every day. Tsuda said that most residents have been vaccinated and that the facility is very diligent with safety precautions.
The issue is complicated by the fact that the three vaccines being used in the United States have received emergency use authorization from the Food and Drug Administration.
In December, the U.S. Equal Employment Opportunity Commission determined that employers could require coronavirus vaccinations for workers but also provided for exemptions for people claiming medical or religious reasons for not getting a shot.
According to the Americans with Disabilities Act, employers are entitled to set a qualification standard that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
If an employer denies a medical or religious exemption, it needs to prove the employee poses a direct threat at the work site and there is no way to provide a reasonable accommodation, such as remote work, that will eliminate or reduce the risk.
“There are a handful of lawsuits now around the country in which employees are challenging, under various alleged constitutional and statutory rights — none of which I believe are going to succeed — the right of employers and the government to sanction mandatory vaccinations, said Jeff Portnoy, a Honolulu attorney with Cades Schutte.
Ortiz and co-worker Merlie Pascual applied for religious exemptions in the first week of June. In order to get approval, they needed to write a description of their religious beliefs, obtain a letter from an outside party explaining why vaccination conflicts with their religion and submit the forms by a deadline.
Pascual missed the deadline, and Ortiz’s request was reviewed and later denied in an email on July 16. The email explained that after a home office committee reviewed her request for exemption, it was still unable to grant her request and encouraged Ortiz to get fully vaccinated before Aug. 7 to continue her employment.
“There’s no reason why I would need medicine like that to be put into my body when I have my Lord to protect me,” Ortiz said.
Despite protections under Title VII of the Civil Rights Act of 1964 and the ADA, Portnoy said the odds are strongly in favor of employers’ rights to terminate an employee, especially because the federal agency tasked with protecting employees sanctioned the decision.
Certified nursing assistants help residents with activities of daily living such as bathing, dressing and eating. Ortiz said that despite working closely with patients, she does not feel that she is putting them at risk, especially when all CNAs are required to wear masks and take bi-weekly COVID-19 tests.
“The older people are vaccinated, so they shouldn’t have to worry about unvaccinated people,” she said.
Ortiz says her main purpose in life has been taking care of others. After high school, she became a caregiver for her grandmother and aunt and babysat her sister’s child. Following graduation, she worked as a teacher’s aide for children ages 2 to 5 and in 2019, she became a CNA.
At first she thought finding work elsewhere wouldn’t be difficult. But she has run into vaccine requirements at other facilities.
Ortiz is not an anomaly within the health care sector. A recent data analysis from WebMD and Medscape Medical News found that 1 in 4 hospital workers have not received a single dose of a COVID-19 vaccine.
Hilton Raethel, president and CEO of the Healthcare Association of Hawaii, said the organization strongly encourages everyone to get vaccinated but has avoided a mandate for two main reasons: The vaccine has yet to get full authorization from the FDA and fears of labor shortages.
“We’re actually fairly confident that once the vaccines receive FDA approval, that there will be much stronger support for mandates from health care organizations,” he said.
President Joe Biden said last week that the FDA may fully approve the vaccines as early as this fall, although he stressed the need to follow proper scientific procedures.
Raethel also cautioned that the loss of staff from a mandate could have a negative impact on hospitals and facilities.
“It’s very, very concerning to us when 97% to 98% of the infections and hospitalizations right now are preventable,” Raethel said.
The Queen’s Medical Center and Hawaii Pacific Health also said they don’t require vaccinations for employees.
“With more to learn about how the COVID-19 vaccine will be part of our regular health care needs moving forward, such as the need for booster shots or whether we will need it annually like the flu shot, we believe more information is needed before any decision is made about it being a requirement for staff,” HPH said in an email.
It added that 84% of its employees have been vaccinated despite the lack of a mandate.
The dilemma extends to all work places. Lt. Gov. Josh Green said Friday that the state has no plans to issue a mandate.
“I have not talked about being punitive in any way because I believe we should all get there together of our own free will,” Green said in an interview with the Honolulu Star-Advertiser’s “Spotlight” program.
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