A new federal court decision could spell trouble for the ongoing spate of lawsuits against private employers that require vaccines.
On Sept. 24, St. Elizabeth Healthcare won a lawsuit brought on by employees (or former employees) who had believed the Greater Cincinnati hospital system's COVID-19 vaccine requirement to be unconstitutional. Unswayed by their arguments, U.S. District Judge David Bunning in Covington ruled that St. Elizabeth had the right to set employment terms, Reuters reports.
In August, St. Elizabeth and five other major Greater Cincinnati healthcare systems announced that they would require employees, providers, contractors and volunteers to be vaccinated against COVID-19 by this fall, with St. Elizabeth giving an Oct. 1 deadline. With the highly transmissible Delta variant of the coronavirus spreading widely throughout Ohio and Kentucky since early summer, leaders of the hospital systems said that protecting their workforce while serving the community was paramount (Greater Cincinnati's hospitals are among the largest employers in the region).
Hospital leaders also announced that they would return to COVID safety protocols from earlier in the pandemic: mask requirements for both unvaccinated and vaccinated individuals within healthcare facilities and support areas plus social distancing.
The vaccine requirement went into effect as a condition of employment. All of the hospitals said there would be exceptions for medical reasons and strict religious beliefs.
Judge Bunning said that the employees who had filed the lawsuit against St. Elizabeth failed to establish that their individual liberties were violated.
Mark Guilfoyle, an attorney for St. Elizabeth, said that Bunning's ruling is the first involving a request for an injunction against a private employer's COVID-19 vaccine mandate, Reuters reports.
A number of lawsuits against private employers requiring COVID-19 vaccines are on dockets throughout the United States.
Ohio's COVID-19 Battleground
Ohio Rep. Kyle Koehler (R-Springfield) recently introduced House Bill 424, which would raise the threshold plaintiffs must meet to prevail on a COVID-19 lawsuit. Ohio plaintiffs would need to show that coronavirus exposure was caused by conduct that was “reckless,” “intentional,” “willful or wanton.”
The bill would provide protection from lawsuits for people who spread COVID-19 through negligence, generally defined as the failure to do something a reasonable person under the same circumstances would do.
The legislation would also ban schools, colleges, and government offices from requiring anyone to receive the COVID-19 vaccine or show proof of their immunization status. They would also not be allowed to deny anyone “full and equal treatment” of their services if they are unvaccinated, and they would not be able to fire unvaccinated employees.
Ohio Republicans have spent months pushing various proposals to limit or outlaw the ability of businesses, schools and employers to mandate vaccination. Koehler’s bill, however, is the first instance of this paired with protection for people who spread COVID-19.
Vaccinated people are five times less likely to be infected and more than 10 times less likely to wind up dead or hospitalized due to COVID-19, according to CDC data.
In 2020, lawmakers passed legislation establishing a similar immunity against COVID-19 claims. However, that bill contained no provisions regarding vaccines and expires on Sept. 30, 2021. Koehler’s bill would make permanent the immunity.
HB 424 would also provide immunity for healthcare providers during a declared disaster or state of emergency. This includes long-term care facilities, which were home to at least 8,000 of Ohio’s roughly 21,600 documented COVID-19 deaths.
Cincinnati's Healthcare Staffing Shortages
Greater Cincinnati hospitals are feeling the stress from so many COVID-19 patients — especially as more and more healthcare professionals opt for less intense careers.
During a Sept. 22 briefing with Hamilton County Commissioner Denise Driehaus and Hamilton County Public Health Commissioner Greg Kesterman, Dr. Richard Lofgren — UC Health's president and CEO — said that the Cincinnati region's healthcare facilities have been overwhelmed by the current COVID-19 surge. According to the panelists, one in five people using hospital beds and one in three people in intensive care units throughout the region are COVID-19 patients.
"This is above and beyond some of the normal demands on our healthcare system," Lofgren said.
Hospitals are worried about the exodus of healthcare staff as coronavirus cases continue to rise and vaccination rates slow to a crawl in Ohio and Kentucky, with many staff members having been on duty essentially since March 2020
"A number of things factor into it. Quite honestly, there are a number of healthcare providers who have, as a result, really just left the field. I think that a number of people, nurses and other staff, really stepped up and did triple overtime, really extended themselves to accommodate the surge, and as I mentioned before, they're just exhausted," Lofgren said. "And the ability to stretch at that point has really been taxed at a level that, personally, I've never seen before. So I think people need to understand that the health systems right now are overwhelmed and they are strained and really are forced to try to manage the demand."
Lofgren said that staff in area hospitals, including UC Health facilities, have seen an increase in aggressive behavior from patients and families who don't want to wear masks. He also said that though a small percentage healthcare professionals have left employers that are requiring employees to be vaccinated against COVID-19, most simply are exiting the industry.
"The best thing if you really understand and value the work that the healthcare community (does), besides giving a high five and a distant hug, is to get vaccinated," Lofgren said. "Really, what we can do is to wear a mask, get vaccinated so that we're preventing this disease not only for the welfare of our community but also the ability for us to take care of not only COVID patients but critical non-COVID care, as well."
Delta Continues Rampage in Ohio and Kentucky
Ohio and Kentucky continue to sustain a months-long spike of COVID-19 cases, primarily among the unvaccinated, according to data reported by the Ohio Department of Health. The recent surge — largely attributed to the highly transmissible Delta variant of the coronavirus — is driven by children ages 18 and younger who, as of Sept. 22, make up about three out of every 10 infections statewide.
On Sept. 24, 6,751 people in Ohio were vaccinated from COVID-19, according to the Ohio Department of Health’s coronavirus dashboard. That’s a drop from about 7,000 on Aug. 21 and about 7,500 on July 21, but slightly higher than 6,063 on June 21 when the Delta surge began to take hold. No recent dates have come close to Ohio’s peak of almost 108,000 vaccinations on March 31, which was shortly after vaccine eligibility opened up to all population groups.
Fifty-three percent of Ohio's population has received at least one dose of a COVID-19 vaccine, while just 49% are fully vaccinated. The CDC considers a person to be fully vaccinated at least two weeks after the second dose of a two-shot vaccine series (Pfizer or Moderna) or two weeks after a single-dose vaccine (Johnson & Johnson).
In Kentucky, 60% of the state's population has received at least one dose, but many counties such as Spencer and Christian have vaccinated less than 35% of their residents, according to public state data.
According to a recent poll, one in three unvaccinated Kentuckians said nothing would entice them to get a COVID-19 vaccine.
As of last week, the state's hospitals were filled with COVID patients, and according to Gov. Andy Beshear, about 90 beds are left in Intensive Care Units. Sixty-six Kentucky hospitals reported "critical" staffing shortages, and at least two dozen will soon receive backup help from the National Guard.
State data showed that during the week of Sep. 12, the state's seven-day average COVID-19 positivity rate was 13.88%, the highest recorded since Kentucky had adequate testing supplies.
Find COVID-19 vaccination resources and data at coronavirus.ohio.gov and kycovid19.ky.gov.
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