It’s time for another installment of of our special series COVID-19 Update, bringing you the latest developments on the novel coronavirus outbreak that public health authorities here and across the country are working to mitigate.
On Thursday, January 13th, with new cases of COVID-19 rising at an almost asymptotic rate courtesy of the omicron variant, the Supreme Court of the United States blocked the Biden-Harris administration from enforcing a vaccine-or-testing mandate for companies with more than one hundred employees.
The decision, which was criticized by the administration, was then followed by a second decision allowing a more modest mandate requiring healthcare workers at facilities receiving federal money to be vaccinated.
These two decisions hinge largely around which federal entity has what level of authority. OSHA (Occupational Safety and Health Administration) was deemed by the right wing majority on the Court as acting outside its authority:
Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” … It is instead a significant encroachment into the lives — and health—of a vast number of employees … There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.
The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures...Confirming the point, the Act’s provisions typically speak to hazards that employees face at work.
And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.
… while the Department of Health and Human Services is within its authority:
The Medicare program provides health insurance to individuals 65 and older, as well as those with specified disabilities. The Medicaid program does the same for those with low incomes.
Both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.”
One such function—perhaps the most basic, given the Department’s core mission — is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more.
To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”
Municipal, county and state mandates are not affected by either decision and any local mandates in place may remain. Citigroup intends to fire all workers who aren’t vaccinated by the end of January 2022, while Starbucks has declared that all employees must be vaccinated or undergoing regular testing by February 9th.
Other companies, such as Boeing, General Electric, Union Pacific and BNSF Railway had suspended their vaccine or test mandates as a result of the stay in November of 2021 by the U.S. Court of Appeals for the Fifth Circuit in Louisiana against the Biden-Harris administration’s mandate for large employers, and their future actions are unknown.
Boeing said that about ninety-two percent of its more than 110,000 U.S. employees were fully vaccinated or had received exemptions from the mandate, but over a third of its employees reside in Alabama, Arizona, Missouri, Oklahoma, South Carolina and Texas, which have lax to nonexistent regulations in place — this probably had an effect on their decision to suspend.
Walmart, Amazon and JPMorgan Chase, three of the largest employers in the United States, have yet to issue any broad requirements for their workers.
One likely result of the first decision by the Supreme Court will be significant delays in employees whose physical presence is not considered essential returning to offices. Many companies have been reducing their office space requirements since mid-2021, and Court’s decision to strike down the mandate on large employers is likely to result is further reductions.
No final decision by the Supreme Court regarding a vaccine or testing mandate for Federal contractors has yet been made, though the United States Postal Service will both not meet the vaccine or testing requirement and not be provided a requested 120-day extension from meeting the OSHA requirement.
On Thursday, January 13th, Governor Jay Inslee took six steps in response to rising cases of COVID-19 due to the omicron variant.
First, one hundred non-clinical personnel among the Washington State National Guard will be deployed largely to assist emergency rooms at eight facilities across the state to alleviate crowding of patients at these facilities and to provide COVID-19 testing teams where most useful.
Second, all hospitals within Washington state will be required to pause all non-urgent procedures, again in order to alleviate crowding.
Third, take various actions to increase staffing within and facilitate transitioning qualified patients from hospitals and into long-term care facilities.
Fourth, the state will take steps to make personal protective equipment (PPE) for hospitals and related facilities both mandatory and available.
Fifth, the state will be attempting to entice retired health care workers to return to work in non-frontline roles to ensure enough personnel are available.
Sixth, the state will invest $30 million to assist healthcare workers in completing their educational and clinical requirements and professional development.
Washington has had 1,029,495 cases and 10,220 attributable deaths.
The state has the forty-seventh worst infection rate among the fifty states, the District of Columbia and Puerto Rico per million in population.
The state has the forty-sixth worst death rate among the fifty states, the District of Columbia and Puerto Rico per million in population.
10,480,434 tests have been recorded.
- Doses of vaccine distributed to the state: 13,915,795
- Doses administered: 11,268,717 (80.98%)
Oregon has had 504,731 cases and 5,870 attributable deaths.
The state has the fourty-ninth worst infection rate among the fifty states, the District of Columbia and Puerto Rico per million in population.
The state has the forty-fifth worst death rate among the fifty states, the District of Columbia and Puerto Rico per million in population.
9,155,048 tests have been recorded.
- Doses of vaccine distributed to the state: 7,953,005
- Doses administered: 6,193,364 (77.87%)
Idaho has had 336,424 cases and 4,263 attributable deaths.
The state has the thirty-fifth worst infection rate among the fifty states, the District of Columbia and Puerto Rico per million in population.
The state has the thirty-fourth worst death rate among the fifty states, the District of Columbia and Puerto Rico per million in population.
2,526,106 tests have been recorded.
- Doses of vaccine distributed to the state: 2,741,310
- Doses administered: 1,881,077 (68.62%)
British Columbia has had 291,246 cases and 2,462 attributable deaths.
5,272,664 tests have been recorded.
British Columbia has the eighth worst infection rate and the sixth worst death rate among the thirteen Canadian provinces and territories per hundred thousand population. (If it were an American state, it would be fifty-third and fifty-third, respectively, out of fifty-three.)
- Doses of vaccine distributed to the province: 10,735,884
- Doses administered: 9,897,611 (92.19%)
That does it for this installment of COVID-19 Update. Stay safe and well!