Weekly Review: COVID-19 Legal and Ethics Issues – June 14, 2021

Weekly Review: COVID-19 Legal and Ethics Issues – June 14, 2021

Hospital COVID-19 Vaccine Mandate Upheld by Federal Court

Earlier this week, Houston (Texas) Methodist Hospital suspended without pay 178 healthcare workers for refusing COVID-19 vaccinations in violation of the hospital’s new mandate that all of their nearly 25,000 employees be fully vaccinated by Monday. According to the report by NBCNews.com, these employees did not get either religious or medical exemptions (285 unvaccinated employees did receive either medical or religious exemptions, and another 332 were granted deferrals on the deadline).

The hospital’s action was challenged by Jennifer Bridges and 116 other hospital employees in the federal U.S. District Court of the Southern District of Texas. The employees attempted to argue that they were being wrongfully terminated, that the hospital could not require vaccination with a vaccine that was not approved by the FDA, which the plaintiffs’ described as “experimental,” and that doing so would violate Federal law. [NOTE: The vaccine has been authorized for emergency use by the Food and Drug Administration, using a review process that held the vaccines to comparable safety and efficacy standards to the full FDA approval process, and is therefore not deemed “experimental.” Furthermore, as discussed previously on this blog, the EEOC issued guidance last month stating that employers may require Covid-19 vaccination, so long as they are mindful of reasonable accommodation standards outlined by the Americans with Disabilities Act and Civil Rights laws.]

On Saturday, the Federal court threw out the plaintiffs’ complaint. It is helpful to review the five page decision of Judge Lynn Hughes in some depth, as she explains clearly the incorrect statements and claims regularly being made by those resisting and protesting the COVID-19 vaccine and vaccine mandates, including in the letter written by many members of the Indiana Senate to Indiana University about their proposed vaccine requirement for students, faculty and staff, and the opinion issued by the Indiana Attorney General on the IU mandate.

Judge Hughes states that in the “press-release style of the complaint” the plaintiff, “dedicates the bulk of her pleadings to arguing that the currently-available COVID-19 vaccines are experimental and dangerous.” Judge Hughes concludes, “This claim is false, and it is also irrelevant.” She continues that “Bridges also argues that the injection requirement violates public policy. Texas does not recognize this exception to at-will employment, and if it did, the injection requirement is consistent with public policy. The Supreme Court has held that (a) involuntary quarantine for contagious diseases and (b) state-imposed requirements of mandatory vaccination do not violate due process.”

On the claim that this is requiring employees to participate in a human trial of an experimental medical intervention, Judge Hughes states that the requirement is permissible under federal employment law and drug law, and that the plaintiff “has again misconstrued [the law], and she has now also misrepresented the facts. The hospital’s employees are not participants in a human trial.” According to the Court, the FDA has authorized the vaccine for general public use during the pandemic emergency. Furthermore, she explains that the federal law (21 USCS 360bbb-3) regulates the department of Health and Human Services, and doesn’t create an opportunity to sue private employers or other parts of government, knocking out the plaintiffs’ claim under federal drug law (a similar claim was made by the Indiana Senators).

The plaintiffs also make a frequently-repeated incorrect claim that mandating the vaccine violates the Nuremberg Code. Judge Hughes states not only that the Nuremberg Code does not apply, as the hospital is a private employer, but also calls “reprehensible” the plaintiff’s attempt to make this parallel.

Finally, Judge Hughes pointedly states that the plaintiff has not been coerced. Similar types of claim were made by both the Indiana Senators and the Indiana Attorney General about the Indiana University vaccine mandate (“IU gives students, faculty, and staff no other option or alternative to vaccination”):

Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.

Equity in COVID-19 Response

As we know, the COVID-19 pandemic has disproportionately harmed minoritized populations in this country. As states reopen, what can — or should — states do to ensure that they do not continue or worsen the health disparities caused over the last 18 months? This new American Journal of Public Health article by an array of leading public health lawyers and ethicists analyzes California’s reopening plan, the first in the country to incorporate health equity considerations into the process through which counties could reopen businesses, schools, and other facilities.

In its formula to place counties in 1 of 4 reopening tiers, California’s Blueprint for A Safer Economy would examine not only counties’ test positivity rates and adjusted case rates per 100,000 residents, counties also had to show they were addressing disparities in two ways:

  1. By submitting a plan identifying and assessing Covid’s impact on the county’s disproportionately affected populations, and showing how they would target investments toward those communities to interrupt disease transmission (e.g., committing additional funding toward “testing, contact tracing, education or outreach, and support for isolation or quarantine”).
  2. Using the California Healthy Places Index (HPI), an equity metric that “incorporates 25 community characteristics related to economic stability, education, the built environment, social and community context, and health and health care” to assess whether the test positivity rate lagged in the county’s most vulnerable census tracts.

In the piece (which is available Open Access), the authors outline a number of concerns raised by the California program; however, they do commend California’s approach for fostering public discussion and targeting public resources toward addressing structural determinants of health, such as safe housing and health care deserts, as part of their pandemic response and recovery process.

Federal COVID-19-related Healthcare Workplace Safety Standards Released

The U.S. Department of Labor’s Occupational Safety and Health Administration has released Emergency Temporary Standards for Healthcare Workplace Safety. Healthcare employers will be expected to develop a formal infection control plan and implement a layered safety approach to protect its workers. This will include patient and employee screening programs, PPE, physical distancing, use of physical barriers, and cleaning and disinfection processes, among other requirements. The OSHA website includes both an FAQ page and a short factsheet on the standards.

The rules are focused on “those working in healthcare settings where suspected or confirmed COVID-19 patients are treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable
expectation that any person with suspected or confirmed COVID-19 will be present.”

It is expected in the near future OSHA will also be releasing voluntary safety standards for non-healthcare workplaces.

The “End” of the Pandemic

This week in The Atlantic, Ed Yong asks who will bear the risks that will remain at the pandemic’s end? He critiques the focus of the pandemic response on individual responsibility, and shows how such framing blurs away significant gaps in access and safety that may harm our response efforts:

There’s a catch, though. Unvaccinated people are not randomly distributed. They tend to cluster together, socially and geographically, enabling the emergence of localized COVID-19 outbreaks. Partly, these clusters exist because vaccine skepticism grows within cultural and political divides, and spreads through social networks. But they also exist because decades of systemic racism have pushed communities of color into poor neighborhoods and low-paying jobs, making it harder for them to access health care in general, and now vaccines in particular.

“This rhetoric of personal responsibility seems to be tied to the notion that everyone in America who wants to be vaccinated can get a vaccine: You walk to your nearest Walgreens and get your shot,” Gavin Yamey, a global-health expert at Duke, told me. “The reality is very different.” People who live in poor communities might not be near vaccination sites, or have transportation options for reaching one. Those working in hourly jobs might be unable to take time off to visit a clinic, or to recover from side effects. Those who lack internet access or regular health-care providers might struggle to schedule appointments. Predictably, the new pockets of immune vulnerability map onto old pockets of social vulnerability.

According to a Kaiser Family Foundation survey, a third of unvaccinated Hispanic adults want a vaccine as soon as possible—twice the proportion of unvaccinated whites. But 52 percent of this eager group were worried that they might need to miss work because of the reputed side effects, and 43 percent feared that getting vaccinated could jeopardize their immigration status or their families’. Unsurprisingly then, among the states that track racial data for vaccinations, just 32 percent of Hispanic Americans had received at least one dose by May 24, compared with 43 percent of white people. The proportion of at least partly vaccinated Black people was lower still, at 29 percent. And as Lola Fadulu and Dan Keating reported in The Washington Post, Black people now account for 82 percent of COVID-19 cases in Washington, D.C., up from 46 percent at the end of last year. The vaccines have begun to quench the pandemic inferno, but the remaining flames are still burning through the same communities that have already been disproportionately scorched by COVID-19—and by a much older legacy of poor health care.

For unvaccinated people, the pandemic’s collective problem not only persists, but could deepen. “We’re entering a time when younger children are going to be the biggest unvaccinated population around,” Lessler told me. Overall, children are unlikely to have severe infections, but that low individual risk is still heightened by social factors; it is telling that more than 75 percent of the children who have died from COVID-19 were Black, Hispanic, or Native American. And when schools reopen for in-person classes, children can still spread the virus to their families and communities. “Schools play this fairly unique role in life,” Lessler said. “They’re places where a lot of communities get connected up, and they give the virus the ability, even if there’s not much transmission happening, to make its way from one pocket of unvaccinated people to another.”

Eviction Moratorium

Hawaii has extended its eviction moratorium by 60 days, through August 6.

|2021-06-14T08:20:59-04:00June 14th, 2021|COVID-19 Literature|0 Comments

About the Author: Ross Silverman

Ross Silverman
Ross D. Silverman, JD, MPH, is Professor of Health Policy and Management at Indiana University Fairbanks School of Public Health and Professor of Public Health and Law at Indiana University McKinney School of Law in Indianapolis. He is a member of the IU Centers on Health Policy and Bioethics. His research focuses on public health and medical law, policy, and ethics, and law's impact on health outcomes and vulnerable populations. He also serves as Associate Editor on Legal Epidemiology for Public Health Reports, the official journal of the Office of the U.S. Surgeon General and the U.S. Public Health Service. His most recent Covid-19 publications include: "Ensuring Uptake of Vaccines Against SARS-CoV-2" in the New England Journal of Medicine (with MM Mello & SB Omer), and "Covid-19: control measures must be equitable and inclusive" in BMJ (with ZD Berger, NG Evans & AL Phelan)

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