The Complex Business of Vaccine Mandates

At the start of the American Revolution, ninety per cent of the deaths in the Continental Army were due to disease. Smallpox was especially devastating: nearly a third of those infected died. General George Washington weighed an Army-wide mandate for smallpox inoculation—a procedure with a mortality rate of around two per cent. The mandate was sure to meet resistance, and could signal to the British how beset the Americans were by illness. Still, on February 6, 1777, he sent a letter to William Shippen, Jr., one of the Army’s chief physicians. If smallpox were allowed to “infect the Army in the natural way and rage with its usual virulence,” he wrote, “we should have more to dread from it than from the Sword of the Enemy.” A mandate went into effect, and cases of smallpox plummeted. Washington’s order turned out to be one the most consequential decisions of the Revolutionary War.

Throughout the COVID-19 pandemic, American leaders have considered the pros and cons of vaccine mandates. Until recently, they’ve held back. Mandates, their role in the Revolution notwithstanding, have been condemned as “un-American”; the COVID vaccines are also new, and only recently received full approval from the Food and Drug Administration. Carrots—lotteries, cash payments, gift certificates—have seemed preferable to sticks. And yet, today, a third of eligible Americans are not fully vaccinated against COVID-19. More and more, mandates look like our surest path to normalcy.

Today, although there is no single, all-encompassing mandate, an interlocking set of requirements is taking shape. First, there are the soft mandates—those which allow people to choose between inconvenience and immunization. New York City, for instance, has introduced proof-of-vaccination requirements for indoor dining, Broadway shows, and gyms; many workplaces have instituted mandates that include an option to get tested instead of getting immunized. More than a third of all states now require either vaccination or weekly testing for public-sector workers; the Biden Administration has ordered the creation of a similar national requirement for all workers at businesses with more than a hundred employees, a policy thought to apply to as many as a hundred million workers nationally.

The next step is the hard mandate: get vaccinated or get fired. A number of large companies—United Airlines, Tyson Foods, Disney, A. T. & T.—have announced such mandates for most workers. (A federal judge has temporarily blocked United’s plans to place unvaccinated workers on unpaid leave.) Many universities, too, now require COVID vaccination for students and employees. The health-care sector, which employs more Americans than any other, is also the one in which hard mandates have gone furthest: nearly half of U.S. hospitals now require vaccination for employees. In mid-August, when New York’s mandate was announced, only three-quarters of the state’s hospital workers and less than seventy per cent of its nursing-home staff were fully vaccinated. Today, roughly ninety-two per cent of the state’s more than six hundred and fifty thousand health-care workers have received at least one dose of a COVID vaccine.

Of course, that means that eight per cent of the state’s health-care workforce—more than fifty thousand people—may soon be out of a job. And the headline numbers obscure a more complicated reality. As in the rest of society, vaccination rates in health care have a clear educational gradient. Doctors and nurses are much more likely to have been immunized than housekeepers, home health workers, nursing aides, and others with less education. The health-care setting also matters. At many large hospital systems, like NewYork-Presbyterian, where I work, more than ninety-nine per cent of staff members were vaccinated even before the state mandate. By contrast, in some New York nursing homes, a third of employees hadn’t received a single dose. There, the mandates have been a shock, forcing some facilities to place workers on leave and even to stop accepting new patients. Hard mandates may be necessary to bring the pandemic to an end. But, as they spread—both within health care and outside it—more institutions and people will find themselves confronting their costs.

“We used to have a weekly testing option,” Mitchell Katz, the C.E.O. of New York City Health and Hospitals, the largest public health-care system in the country, told me. “It pushed vaccination rates up initially, but not very much. It’s also not nearly as safe. Just because you’re negative on Monday doesn’t mean you’re negative on Thursday.” Thanks to the mandates, the number of unvaccinated employees in the system has fallen dramatically, from more than eleven thousand to under three thousand; some two thousand holdouts got a shot after the rule went into effect, and were allowed to return to work. Even so, Katz had to place five hundred nurses on leave. The system was able to function normally only because he was able to arrange replacements through an independent nurse-staffing agency. “We don’t have a problem because we were able to get the help we need,” Katz told me. “If I couldn’t have gotten five hundred nurses, I would have had a big problem.”

Some hospitals, especially in upstate New York, do have a problem: it’s a region where mandates for health-care workers have been both necessary and painful. Lewis County General Hospital, in Lowville, New York, had to pause maternity care. Erie County Medical Center, in Buffalo, said that it would delay some surgeries. “There is no question that the mandate has taken a challenging staffing situation and made it more challenging,” Dennis McKenna, the C.E.O. of Albany Med, which suspended nearly two hundred employees last month, told me. (Most of those suspended chose to get immunized after the deadline, and were allowed to return to work.) McKenna’s hospital is the only academic medical center in northeastern New York, and it routinely accepts patient transfers from regional hospitals; in recent weeks, it has seen a surge in transfer requests, as other hospitals have struggled with staffing issues. Kathleen Parrinello, the chief operating officer of Strong Memorial Hospital, in Rochester, told me that, even before the requirement came into effect, the nursing-staff deficit at her institution was one and a half times larger than normal. “When you have high vacancy rates like that, any additional losses really hurt,” she said. In recent weeks, the hospital has had to delay scheduling new elective procedures.

Last month, New York Governor Kathy Hochul declared a state of emergency—a measure that, among other things, waives licensing requirements, allowing health-care workers from other states and countries to work in New York, and permits the use of the National Guard to fill staffing shortfalls. The state has also opened a crisis operations center, through which facilities can ask for help. But staffing will become a bigger issue as mandates for health-care workers are instituted across the country. Maine, Rhode Island, and Washington, D.C., have also started requiring vaccination as a condition of employment in medical settings, and other states are soon to follow. Meanwhile, President Biden has announced a federal mandate that will require vaccination for anyone working in a health-care facility that receives Medicare or Medicaid payment—a move that would affect more than seventeen million health-care workers nationwide. (Details about how the mandate will be implemented and enforced remain unclear, but it appears that opting for regular testing instead of vaccination will not be an option—it’s a “hard” mandate.)

The effects of the mandates on staffing will likely be especially severe in rural areas, where the COVID death rate is twice that of urban centers. “We need to move away from this debate about whether mandates are good or bad,” Alan Morgan, the C.E.O. of the National Rural Health Association, an organization that counts more than ninety per cent of rural hospitals and clinics among its members, told me. “All rural health-care workers need to be vaccinated now, period. But we also know that, whatever we do, some will choose not to get vaccinated. There are going to be care disruptions in rural settings. That’s not a hypothetical—it’s an inevitability.” In a rural hospital, Morgan said, “even two- or five-per-cent staff loss has a major, major impact.” Morgan thinks that leaders need to incorporate predictable staffing problems into their mandate planning. He would like to see money released from the federal Provider Relief Fund to help hospitals hire travelling nurses, and he thinks that FEMA and the Public Health Service Commissioned Corps should deploy teams to rural hospitals. Mandates, in his view, must come with mobilizations. So far, rural hospitals are on their own.

In nursing homes, the staffing challenges created by hard mandates are even more profound. “Nursing homes have very different staff compared to hospitals,” David Grabowski, a leading nursing-home researcher at Harvard, told me. “In hospitals, it’s mostly physicians and nurses, with relatively few care aides. In nursing homes, that’s completely flipped. The vast majority of the staff are certified nurse aides. They have the lowest vaccination rates.”

For decades, nursing homes have struggled to recruit and keep staff, because of low pay, paltry benefits, and hazardous working conditions. Since the start of the pandemic, the nursing-home sector has lost nearly four hundred thousand workers. Grabowski believes that vaccine requirements could make the situation worse. “People often say, ‘Hey, just mandate the vaccine. If they don’t want to work there, we’ll find somebody else,’ ” he said. “If it were that simple, we wouldn’t have this problem in the first place.” He went on, “Doctors don’t change professions, but nursing aides can move out of health care altogether. That presents a major workforce challenge. Aides do really hard work. They’re underpaid, they’re undervalued. And they can make just as much money at the restaurant down the street.” Grabowski’s research has found that annual staff-turnover rates at many nursing homes already exceed one hundred per cent. Staffing shortages in nursing homes are likely to exacerbate problems in hospitals: if a hospital can’t discharge patients, it can’t admit new ones. Parrinello, of Strong Memorial, told me that her hospital is currently housing three times as many patients awaiting spots in nursing homes as it was this summer.

In understaffed hospitals and nursing homes, vaccine mandates seem to present an unwelcome trade-off. Requiring vaccination protects patients and residents, but also creates the risk of a decline in the quality of care. While the chance of patients contracting the coronavirus inside a hospital appears to be low, there have been numerous reports of serious coronavirus outbreaks in nursing homes caused by unvaccinated workers. Conversely, Grabowski said, “We also have decades of data suggesting that all sorts of bad things happen when nursing homes are understaffed. Some people say, ‘Well, an understaffed nursing home just means people wait a little longer to bathe or dress.’ No, it can lead to really bad things happening—falls, infections, avoidable hospitalizations.” I pressed Grabowski on whether we could keep patients safe from the risks of coronavirus infection and the risks of inadequate staffing simultaneously. “I think the answer is better pay and better working conditions,” he said. Eighteen months into a pandemic that has claimed the lives of one in every ten nursing-home residents, the federal government has fallen far short in responding to the workforce challenges these facilities face.

In 1981, the behavioral economists Amos Tversky and Daniel Kahneman published a paper in the journal Science. The study’s participants were asked to consider a hypothetical situation in which a deadly infectious disease was threatening the lives of six hundred Americans. Their job was to choose between two approaches to containing the outbreak. If Strategy No. 1 was adopted, two hundred people would live and four hundred would die. ​​With Strategy No. 2, there was a thirty-three per cent chance that each person would live, and a sixty-six per cent chance that each person would die. The two options were mathematically equivalent, but, nearly three quarters of the participants presented with a positive frame—two hundred people will surely live—chose Strategy No. 1. By contrast, roughly three-quarters of the participants who were told that four hundred people would die chose the opposite approach.

When it comes to vaccine mandates, the choices we face are not equivalent: mandates are sure to save more lives in aggregate. Still, the psychological tendency highlighted by Tversky and Kahneman’s study matters. The importance of the mandates makes it easy to focus on their positive effects, rather than their negative ones. But, by failing to consider the loss frame (large numbers of people will lose their jobs; workplaces, some vital, will be disrupted), we risk overlooking a central feature of these policies. Vaccine mandates are often understood as an abstract political issue: a clash between individual liberty and the public good. But mandates also raise a straightforward policy question: Who wins and who loses when people are forced to accept immunization as a condition of employment? By virtue of their jobs, health-care workers have a special moral obligation to get immunized; perhaps for that reason, they are already far more likely to have been vaccinated than the general population. In total, sixty-six million Americans eligible for the vaccine have not received a single shot. If even a fraction of them leave their jobs, the practical and economic repercussions will be significant.

Katz, the head of the city’s public health-care system, thinks that, in the end, we may need to move beyond a patchwork of narrow, mainly soft mandates. In recent months, the wildly contagious Delta variant has slowed the nation’s economic recovery; the U.S. is again recording more than a thousand coronavirus deaths a day. In parts of the country, hospitals are full and staff are in short supply. At some point, Katz suggested, controlling the pandemic may require many unyielding mandates that, collectively, touch nearly all parts of daily life. We may need proof of vaccination to travel by plane or train, to attend college, to engage in most social activities, to work in any sector of the economy.

Even as mandates work to slow the spread, they will also widen a societal divide. The fallout is likely to be borne disproportionately by low-income Americans, who, because they’re less willing to accept vaccines, may experience higher job disruptions. In many cases, the workforce challenges in the broader economy could mirror those in health care. Sectors such as retail and restaurants are already struggling with labor shortages, and some economists worry that mandates could make the situation worse. This is particularly true when it comes to hourly-wage workers. Fears of labor disruptions are one reason that Walmart’s vaccine mandate applies only to employees at its headquarters, and to managers who travel domestically—not to the frontline employees who are both less likely to be vaccinated and more likely to catch or spread the virus at work.

And yet work disruptions cut both ways. There is some evidence that the prospect of working alongside unvaccinated colleagues is driving immunized workers away. During the summer’s deadly Delta surge, the number of Americans who reported that they weren’t working because of fear of the virus increased by nearly a third, to 3.2 million people. While companies are reporting trouble hiring workers, states with higher vaccination have experienced greater job growth in recent months. In the broadest sense, therefore, the economic and public-health imperatives are aligned: we need to get the virus under control, through mandates if necessary, so that the country is on firmer footing as we approach the winter. “Ideally, you don’t force people to do something they don’t want to do,” Katz told me. “But this isn’t about whether individuals want the vaccine—it’s part of a social contract.”

Still, there’s a reason that policymakers have been slow to adopt hard mandates. Many Americans are deeply frustrated with those who, nearly a year after the COVID vaccines became available, continue to refuse immunization. Some say that vaccine holdouts deserve what’s coming to them—if they lose their jobs, that’s a consequence of their choice. And yet a more empathetic view demands that we confront an uncomfortable truth: the people who will bear the economic fallout of vaccine refusal are often those who can least well-positioned to do so. Unvaccinated Americans tend to be poorer and less educated than those who’ve been immunized. They are more likely to live in states with fewer public-health measures and more porous social safety nets. A mix of mistrust, misinformation, and misplaced fear has led them down a precarious path, on which they may be putting both their lives and their livelihoods at risk. Even if vaccine mandates are sound policy, we should feel conflicted about the collateral damage they’re likely to inflict. Mandates work, even if—or perhaps because—they sting.