NY's medical worker COVID vaccine mandate entangled in lawsuits, protests. What's next

New York’s push to implement a COVID-19 vaccine mandate for health care workers has become the frontline in a national battle over government leaders requiring the shots to curb coronavirus infections.

From anti-vaccine lawsuits and rallies to President Biden’s national vaccine mandate proposals, New York Gov. Kathy Hochul’s effort to require most medical workers to get shots by Sept. 27 is embroiled in controversy and confusion.

Hospitals and nursing homes across New York warned some of the roughly 20%, or nearly 130,000, of their overall workers declining COVID-19 vaccines could resign or be fired, turning existing workforce shortages into a crisis. A rural Lewis County hospital, for example, recently stopped delivering babies because staff quit over the mandate.

Hundreds of protesters opposed to vaccine mandates gathered Monday outside Strong Memorial Hospital in Rochester, prompting a beefed up police presence to keep patients and staff safe. Rallies against COVID mandates have also regularly lined main streets and hospital entrances in the Hudson Valley and Southern Tier. 

A healthcare worker holds a "honk for medical freedom" sign during a protest against the New York State vaccine mandate on Route 211 in Town of Wallkill, NY on Tuesday, August 24, 2021.

Further, a federal judge on Tuesday issued a temporary restraining order blocking New York from enforcing its medical worker vaccine mandate, citing a lawsuit that claimed the removal of a religious exemption was unconstitutional.

U.S. Northern District Justice David Hurd in Utica issued the order after 17 Catholic and Baptist medical professionals sued state officials Monday. He gave state officials until Sept. 22 to respond to the lawsuit and set a court hearing for Sept. 28.

Hazel Crampton-Hays, press secretary to Gov. Hochul, issued a statement Tuesday saying the "order does not suspend the vaccine mandate, but it temporarily bars the Department of Health from enforcing the mandate where individuals have claims for religious exemption."

Crampton-Hays added the governor "is doing everything in her power to protect New Yorkers and combat the delta variant by increasing vaccine rates across the state," and noted the administration is considering all of its "legal options to keep our communities safe.”  

The rapidly evolving saga is unfolding as the highly contagious COVID-19 delta variant continued to spread statewide. And some experts warned recent returns to in-person learning and office work could fuel another surge in cases, especially if vaccination rates remained stagnant.

For the 80% and 78% of New York hospital and nursing home workers already vaccinated, respectively, the chaos underscored their seemingly endless pandemic nightmare, health care leaders said. 

“We have a health care workforce that is burnt out,” Suburban Hospital Alliance President and CEO Wendy Darwell said.

“This last year-and-half has been like running a marathon, and there is a real level of staff exhaustion here,” she said, noting New Yorkers declining COVID-19 vaccines is prolonging the suffering.  

“The best way we can relieve stress on our health care system, on our communities, and on our staff is to increase vaccination rates,” she added.

Will New York allow vaccine mandate test-out option

New York Gov. Kathy Hochul wears a necklace with the word "vaxed" as she speaks during an event in the Harlem neighborhood of New York, Thursday, Aug. 26, 2021. Hochul has selected Brian Benjamin, a state senator from New York City, as her choice for lieutenant governor. (AP Photo/Mary Altaffer)

Meanwhile, at least 110 of the roughly 600 nursing homes statewide recently reported struggling to admit new residents due to current staffing shortages, according to a new survey by the state Health Facilities Association.

The trade group cited the survey, which also found at least 188 nursing homes faced some form of staff shortage, to urge Hochul in a letter to allow unvaccinated long-term care workers to keep their jobs past Sept. 27, at least temporarily, if they submit to regular COVID-19 testing.

More: What voters think so far of new NY Gov. Kathy Hochul: poll

The request came after the Democratic governor last week said she would consider offering unvaccinated health workers the test-out option, which is currently available for school staff.

But Biden’s pledge Thursday to require all health care workers across the country to get vaccinated against COVID-19 muddied the state policy debate, trade groups said. One reason is many details of the federal mandate, including the start date and enforcement plans, remain unclear.

Still, health care leaders in New York noted the prospect of a federal vaccine mandate could reduce the threat of medical workers here seeking jobs in other states currently without requirements.

Amid the confusion, health care leaders across New York are preparing staffing emergency plans if unvaccinated workers still refuse shots by the state deadline later this month.

Worst-case scenarios include reducing operating room services to staff emergency departments and temporarily closing certain hospital units, such as labor and delivery, according to Bea Grause, president of the Healthcare Association of New York State.

“If you are looking at – particularly for small and community hospitals – some loss of even two dozen nurses, that can devastate a unit,” Grause said.

“It’s always about patient care,” she added, addressing the contingency plans. “It’s about making sure that if someone has a heart attack in central New York that they know their (hospital) doors are open for them.”

More:What voters think so far of new NY Gov. Kathy Hochul: poll

Vaccine and mask mandate protests in New York

Protestors gather in front of Vassar Brothers Medical Center on Sept. 2 to challenge the healthcare provider's vaccine requirement.

Despite health leaders' concerns, several hundred people, including dozens of health care workers, gathered Monday for what has become a weekly “medical freedom” rally and protest outside Strong Memorial Hospital in Rochester.

Car horns blared as the mix of people raising protest signs and American flags lined either side of Elmwood Avenue between the hospital and Mount Hope Cemetery. Slogans on the protestors' placards ranged from expressing opposition to mandates to promoting disproven conspiracies or amplifying unsubstantiated claims. A few protestors used loud speakers to play music or voice their objections.

In the crowd was Miles Bell, 22, of Rochester, a registered nurse working in Highland Hospital’s COVID-19 unit.

Bell said he has held out on getting vaccinated — initially to do more research, not wanting to go first but see how things played out — then, as cases dropped, it became less of a priority to him.

“I’m planning on getting it,” he said, joining the protest over his objections to being mandated to do so by month’s end. “I’m not one to be skeptical that COVID exists, because I see it on my floor.”

More: Will NY's COVID vaccine mandate for health workers trigger staff shortages? What to know

But his unit is understaffed, he said. If more people leave due to the vaccine mandate, that only will get worse.

“Sept. 27th, we’ll see. That’s kind of like doomsday for us,” he said.

Asked if the mandate, and those holding out, has created friction among staff, he nodded to those standing near him: “Most of my colleagues are right here.”

Nurses from the Highland Hospital Medical Center cheer during a Medical Freedom Rally outside the University of Rochester Medical Center in Rochester, N.Y. on Sept. 13, 2021. All of the nurses work on the COVID-19 floor in the hospital.

Others spoke of lingering uncertainty, or renewed skepticism with the prospect of COVID vaccine boosters being needed. They insisted they should have a choice in the matter, even if that included regular testing. 

And some questioned whether they would be hired back if they ultimately chose to get vaccinated later on or the mandate was lifted or changed.

Last month, 86% of all Strong hospital employees were confirmed or reported as vaccinated when then-Gov. Andrew Cuomo initially announced the medical worker mandate.

That number has climbed since to more than 91%, but hospital officials have declined to discuss current statistics, or which if any job categories or sections of the hospital are lagging.

The hospital remains focused on the end-of-month vaccine mandate deadline, holding many one-on-one meetings with staffers to answer questions, officials said. It also is discussing the possibility of not scheduling new elective surgeries for two weeks beginning Sept. 27 and adjusting to the federal court order.

Protesters wave their signs to on going traffic during a Medical Freedom Rally outside the University of Rochester Medical Center in Rochester, N.Y. on Sept. 13, 2021. There were about 500 people in attendance.

A sizable contingent of university and city police were on hand Monday, at the hospital’s request, to staff vehicle entrances and exits. Traffic appeared to move unimpeded, with some backup.

“We’re here just showing support for choice,” said Devan Lapresi, 29, of Rochester, who said she recently resigned her nursing post after working seven years in the neonatal intensive care unit at Golisano Children’s Hospital.

She declined to say whether she is vaccinated. “It shouldn’t have come to this. We’ve been practicing safely for 18 months.”

The origins of the rally go back months, before the state and federal mandates were announced, as Lapresi and others coalesced around frustrations of what they saw as a mounting pressure in the workplace to get vaccinated. Supporters who have joined in those objections include Rochester City Councilman Jose Peo, who attended Monday, raising a sign that read, “Ivermectin Defeats COVID-19” – an unproven claim that prompted the Food and Drug Administration to warn those infected with coronavirus against taking the medication.

More:Judge blocks medical worker vaccine mandate in NY state

Protests continue in the Hudson Valley

In Orange County, health care workers opposed to the vaccination mandate have been holding weekly protests on the side of Route 211 in the town of Wallkill, a bustling commercial district with lots of passing drivers to read their posters. 

“Let Me Call My Own Shots!” read one sign at the first rally on Aug. 24. Another read: “No vaccine needed. I have an immune system.” 

“We have a right to make our own decisions,” Laura Davenport, a protestor from New Jersey, said that day as she stood beside the highway holding an American flag and “stop the mandates” sign.

Nancy McGraw, Sullivan County's public health director, said she held out hope that employees who resisted getting shots will relent as the deadline approaches.

“We do know there will be a measurable impact, and hope that individuals change their mind and get correct information about the safety and efficacy of the vaccines so that the impact will be much less,” she said by email on Tuesday. 

Passing traffic honk their horns in support during a Medical Freedom Rally outside the University of Rochester Medical Center in Rochester, N.Y. on Sept. 13, 2021. Nurses who do not choose to get the vaccine by Sept. 27 will be terminated.

Orange County Health Commissioner Dr. Irina Gelman said there has been gradual vaccination progress at the county-run nursing home, the Valley View Center for Nursing Care and Rehabilitation. The county had stopped accepting new residents at the 360-bed home last month to prepare for a potential staffing shortage if workers left. 

“The good news is more employees at Valley View are being vaccinated, but we still have a ways to go,” Gelman said.

A spokesman for the New Paltz Center for Rehabilitation and Nursing in Ulster County said Tuesday that no employees had quit or threatened to resign because of the vaccine mandate. 

Instead, staff vaccinations increased after the mandate was announced last month, resulting in about 70% of all workers at the home being fully vaccinated by the start of this week. The home has not halted admissions. 

Jeff Jacomowitz, spokesman for the New Paltz Center, said the home and its parent company have strongly encouraged workers since January to get vaccinated. Regional educators explained to workers that the benefits “vastly outweigh the risks.” He said the workers who need convincing “are mostly 50-50 undecided” - not adamantly opposed. 

Across the seven counties in the mid-Hudson Valley region, 80% of hospital workers and 82% of nursing home workers had been fully vaccinated in the most recent available counts.

But the figures are much lower at some individual facilities. The two Sullivan County hospitals run by Garnet Health had 65% and 66% of their staffs vaccinated as of Sept. 7, according to state data.

More:Investigations into Northeast nursing homes ongoing as true COVID death toll rises by 16K

What to know about COVID vaccine religious exemptions 

A Rochester resident receives a Johnson and Johnson vaccine at a mobile site in Jones Square Park.

Meanwhile, the federal lawsuit over the religious exemption is receiving support from the Thomas More Society, a Chicago-based nonprofit law firm involved in religious liberty cases nationally that are opposed to abortion.

The 17 medical workers suing New York state officials, including Hochul and Health Commissioner Dr. Howard Zucker, noted their religious exemption requests are based in part on beliefs that COVID-19 vaccines were connected to a cell line from aborted fetal tissue, court records show.

The workers requested anonymity, citing concerns of workplace and societal retaliation, court records show.

A state Department of Health spokesperson said Tuesday the agency does not comment on pending litigation.

More: NY approves COVID vaccine or testing for teachers, adds prisons, homeless shelters to rule

Liberty Counsel, a conservative Christian legal organization, also filed a lawsuit Friday over the state's attempt to deny religious exemptions from its vaccine mandate, first reported by The New York Times.

In August, Pope Francis and six Catholic cardinals and archbishops released a public service announcement, urging their religious followers to get vaccinated against COVID-19.

"Getting the vaccine," the pontiff said, "is an act of love."

Leaders of Muslim and Orthodox Jewish communities — including the Orthodox Union and Rabbinical Council of America groups, as well as members of the U.S. Council of Muslim Organizations — have also promoted COVID-19 vaccines as safe and effective.

Dr. Joseph Sellers, president of the Medical Society of New York State, representing thousands of doctors statewide, voiced concerns Tuesday about the judge temporarily blocking the vaccine mandate.

"We believe this step will result in a flurry of attempts to circumvent the well-reasoned vaccination requirement that was an important step towards reversing the recent surge attributable to the more easily spread delta variant," Sellers said in a statement.

“These vaccination requirements are essential to protecting public health, particularly the immunocompromised, the elderly, and those (under 12 and ineligible) to receive the vaccination," he added.  

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David Robinson is the state health care reporter for the USA TODAY Network New York. He can be reached atdrobinson@gannett.com and followed on Twitter:@DrobinsonLoHud