Vaccination of Health Care Workers & Vaccine Mandates

A new Kaiser Family Foundation/Washington Post Frontline Health Care Workers Survey found more than 4 in 10 health care workers nationwide remain unvaccinated against the coronavirus. 1 in 8 health care workers indicate they haven’t yet decided whether or not they will pursue vaccination, and nearly 1 in 5 state they have no intention of getting the shot(s).

As we approach a time when Covid-19 vaccine supply outstrips demand, and more readily transmissible virus variants become more widespread, I expect we will see increasing calls for vaccine mandates to be implemented in certain settings. While vaccine uptake rates have been rising, and mandates likely would not be needed or ethically justifiable in most settings, the assurance of a fully vaccinated workforce caring for vulnerable populations in health care settings would be one employment environment with a strong ethical justification for requiring, rather than merely encouraging, vaccination (employees in correctional facilities being another). As I’ve discussed here and elsewhere before, and as Professor Dorit Reiss outlines at Bill of Health, business and government mandates for vaccines approved under Emergency Use Authorizations have not yet been tested in the courts; however, there appear to be no legal barriers to their implementation.

Eviction Moratorium: Two More Federal Court Setbacks

In the past two weeks, Federal District Courts in Ohio and Tennessee have declared the Centers for Disease Control’s eviction moratorium invalid for exceeding the authority granted to the agency under federal law, raising significant questions about the ability to continue to protect tens of millions of people from the health harming damages of housing loss during the twin crises of an ongoing economic recession and pandemic. In both cases, the courts read narrowly the following passage from 42 U.S.C. § 264, which grants the Surgeon General (now the CDC) power to protect against interstate outbreaks:

The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. [emphasis mine]

According to the courts, the “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles” passage indicates limits to the types of steps the CDC can take to attempt to limit communicable disease transmission. Specifically, this would seem to constrict federal power to reacting to extant “flare ups,” and leave the federal agency with very limited authority to implement upstream measures that could prevent increased risks of outbreaks from occurring. The inclusion of language like “such regulations as in his judgment are necessary” and “other measures” appears to me to be an acknowledgement of the drafters of the law that they wished to give the Federal government some flexibility as they could not anticipate the full range of responses that might be needed in the future to address an epidemic. The reading by these two courts, however, seems to want to box the Federal government in to using only those tools that may have existed to fight past outbreaks. This makes three Federal District courts that have opposed the eviction moratorium, and two that have upheld the rule. Stay tuned for more updates, as these decisions are being appealed.

Paid Vaccination Leave

New York State just enacted a law that will give every employee in the state up to 4 hours of paid leave time per shot to get vaccinated against Covid-19, regardless of the size of business, or whether that business is public or private.

Federal Emergency Broadband Benefit

The digital divide continues to pose challenges for individuals and families during the pandemic, complicating everything from going virtually to school to shot signups. Folks who may be struggling to pay for internet access during the pandemic should look at whether they qualify for support under this program.