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Vaccine mandates did their job but are no longer necessary for many employers

By Jeff Levin-Scherz, MD, MBA | September 29, 2022

Our population health leader weighs in on vaccine mandates and a new ruling on the Affordable Care Act’s preventive care requirements in this monthly update.
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Risque de pandémie

There were strong reasons for many employers to implement vaccine mandates in the fall of 2021.

  • COVID-19 was an exceptionally deadly disease.
  • Available treatments weren’t very good.
  • Unvaccinated workers were more likely to bring the virus into the workplace.
  • Immunity rates in the population were low.
  • A government requirement for mandates appeared likely for many employers.

Today the world is a different place. COVID-19 remains more deadly than influenza, but those dying are largely elderly or have compromised immune systems. In Massachusetts, over the last two weeks for instance, 91% of deaths have been in those over age 70, who represent just 11.6% of the population.

The monoclonal antibody Evusheld provides some degree of protection for those with immune compromise. Also drugs like Paxlovid dramatically decrease risk of hospitalization or death.

Those who are unvaccinated remain more likely to get COVID-19 and be infectious. However, the difference in infection rate between vaccinated and unvaccinated people is now much smaller. Immunity rates from vaccination, infection or both, are high.

Prior employer vaccine mandates have substantially increased employee vaccination rates. Based on data from a study of vaccine mandates instituted at colleges, employer vaccine mandates likely saved at least tens of thousands of lives. Employees at workplaces with mandates expressed support for mandates and got earlier vaccinations. Of note, government mandates remain in effect for many government employees and healthcare workers.

But employers have used substantial administrative resources to implement and maintain these mandates and have generally not expanded the mandate to include boosters. Only about 30% of adults age 18 to 64 received a single booster.

It will be a challenge to get a majority of adults to get the new bivalent booster that provides protection against Omicron strains BA.4 and BA.5. I got my bivalent booster this month and had no adverse effects beyond a sore arm. I strongly recommend that those more than two months from their last COVID-19 shots or infection get this booster.

At this point, a mandate to have the initial vaccination without boosters doesn’t make clinical sense, since those who were vaccinated many months or even over a year ago have little remaining immunity from that vaccination. But employers are unlikely to voluntarily implement a mandate to obtain the new booster shot at this point, with the danger from COVID-19 substantially lower than it was a year ago.

Some employers should maintain COVID-19 vaccine mandates, including hospitals and nursing homes, which are required by the Centers for Medicare and Medicaid Services. The hospitals where I am on staff require that employees and staff are up to date with boosters as well as initial vaccination. Congregate living workplaces (including senior care and prisons) would be safer for all if they had mandates in place, although many have already removed these.

COVID-19 is still a serious health threat, and community transmission remains high in over 80% of counties. There are plenty of actions employers can take to keep the workplace safe.

Implications for employers:

  • Promote influenza vaccine. Co-infection with COVID-19 and influenza is especially deadly. Some employers have returned to flu shot clinics this fall, with more workers back at the workplace.
  • Promote the COVID-19 bivalent booster, which is widely available in pharmacies and medical facilities. Employer-sponsored COVID-19 vaccine clinics will be less likely though – as refrigeration requirements are more demanding and this vaccine requires 15 minutes of observation, which complicates vaccine clinic logistics.
  • Be mask-friendly and consider mask requirements if there is a large community outbreak or for large indoor gatherings.
  • Offer sick leave to encourage those with respiratory illnesses not to come to the workplace.
  • Increase ventilation and carefully monitor indoor air quality.
  • Maintain flexibility to allow remote work where possible. This reduces employee density and further encourages employees not to come to the workplace if ill or if they recently had a high-level exposure.
  • Encourage employees to do over-the-counter COVID-19 tests if they feel ill, five days after known exposure, and before and after business travel. Remind employees that employer-sponsored health plans offer eight over-the-counter tests monthly for each insured member. We have reviewed claims data showing that less than 1% of members have obtained these tests each month since this requirement began early this year.

Federal judge rules against ACA preventive care requirements

Federal judge Reed O’Connor has ruled in favor of a small Texas employer that sued to avoid being required to provide first dollar coverage for drugs to prevent HIV infection and HPV vaccination on religious grounds. The judge found that the requirement for this coverage violated the Religious Freedom Restoration Act. His ruling also calls into question the Affordable Care Act’s (ACA’s) requirement that employers cover preventive care recommended by the U.S. Preventive Services Task Force (USPSTF) without member cost sharing.

As of this writing, the judge has not laid out the “remedy” for his ruling or determined how broadly it would apply. Therefore, the requirement to provide first dollar coverage for preventive care as recommended by the USPSTF remains in effect. His ruling about the constitutionality of the USPSTF does not apply to preventive care coverage recommended by the Health Resources Services Administration (HRSA) and the Advisory Committee on Immunization Practices. This ruling is likely to be appealed.

The requirement that employer-sponsored health insurance cover evidence-based preventive care is an excellent example of value-based insurance design, where the amount of out-of-pocket cost in a health plan is inversely proportional to the value of the care. We know that out-of-pocket costs decrease utilization, so making exceptionally valuable care cost less (or nothing) increases the amount of high-value care delivered.

Some employers have gone further than the ACA requires, for instance offering diabetes medicines and supplies without out-of-pocket cost.

Here are several things employers should keep in mind as they monitor implications of this ruling over the coming weeks.

Implications for employers:

  • The ACA’s preventive services list includes vaccinations, screenings for cancer, infectious disease, diabetes and some types of vascular disease, contraception and breast pumps.
  • The total cost of these preventive services is relatively low. The Health Care Cost Institute estimates these costs at $100 to $200 per member per year.
  • About 152 million Americans received first dollar coverage for preventive care mandated by the ACA in 2020.
  • First dollar coverage for preventive care is supported by a majority of Americans.
  • The U.S. has seen a dramatic decline in screening and vaccination through the pandemic, and adding cost sharing at this point to these preventive services could mean fewer preventive services and more preventable illness and death.
  • Coverage of contraceptives helps increase workforce participation, important to many employers given the current labor shortages.
  • Pre-exposure prophylaxis (PrEP) is 99% effective at preventing HIV infection. PrEP is now available generically, which has substantially lowered its cost. The ruling noted that PrEP can cost $22,000 a year, and much of the press has reported this number. I can find the generic PrEP drug for under $17 a month – so cost should not be a reason to require cost-sharing or to not cover this valuable drug.
  • A full list of recommended preventative care and coverage can be found on the following websites: USPSTF, HRSA and ACIP.

Population Health Leader, Health and Benefits, North America

Jeff is an internal medicine physician and has led WTW’s clinical response to COVID-19 and other health-related topics. He has served in leadership roles in provider organizations and a health plan and is an Assistant Professor at Harvard Chan School of Public Health.

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