As COVID-19 variants surge in the country, mask mandates return, and more workplaces and public spaces make vaccination a requirement, how should health care providers proceed? Can they require employees, patients and clients to be vaccinated or disclose their vaccination status? Where does compliance with public health meet protection of one’s privacy, especially now that President Biden has called COVID-19 “a pandemic of the unvaccinated”? And finally, does the Delta variant – which the CDC says is as contagious as chicken pox -- change this conversation?

We know of a doctor who says he spends considerable time and energy educating the undecided or reluctant patients about the COVID vaccine. He shares that it has been rewarding when he can persuade them, and draining when he can’t. He said some doctors have begun to exclude from their practice those patients who refuse to get vaccinated. This raises complex legal and ethical issues, especially when doctors have a duty of care to patients.

The New York state Excelsior Pass, introduced in March, was the first government-issued vaccine passport in the country; but vaccine mandates in the United States stretch back to George Washington insisting that his Continental Army receive inoculation against smallpox. In 1905, the U.S. Supreme Court upheld the authority of states to enforce mandatory vaccination laws, again to contend with smallpox, on the grounds that it is necessary for public health and safety.

Health care spaces continue to have mask mandates in effect to both protect the vulnerable and safeguard public health. In a similar vein, President Biden’s vaccination mandates for federal workers, including the military, aim to mitigate a threat that seems to have emerged with renewed force. If workers refuse the vaccine, they will need to comply with regular testing, social distancing, masking and limiting travel.

Should New York providers take further steps to enforce and promote vaccines? Should they “incentivize” with money and rewards, as Biden has urged local governments to do?

Recently, the California Department of Public Health (CDPH) issued a new Order that impacts healthcare and state employers in California. The CDPH Order requires that almost all healthcare employers verify the vaccination status of all of their workers. The Order also requires workers who are not fully vaccinated (“unvaccinated”) to go through regular COVID-19 testing at specified intervals. These facilities also must have a plan in place for tracking verified worker vaccination statuses.

In the Order, “worker” is broadly defined to include (but is not limited to) the following: nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists and students and trainees. It also applies to contractual staff not employed by the healthcare facility as well as persons not directly involved in patient care but who could be exposed to infectious agents that can be transmitted in the healthcare setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing and volunteer personnel). Could something like this be implemented in New York?