COVID-19 Vaccine Update November 11, 2021

The COVID-19 vaccine has been approved for distribution in children as Pfizer now moves to request authorization from the Food and Drug Administration to recommend booster shots for all adults six months after vaccination. Meanwhile, the vaccine mandate has ruffled feathers of both big businesses and conservative leadership at the state level, with Attorney General Mark Brnovich gearing up for a court appearance against the Biden administration’s rule for vaccinating large companies.

Vaccine Mandates — Hospitals and Providers

On November 4, the Biden administration released the regulation for its vaccine mandates for healthcare providers through the Centers for Medicare and Medicaid Services (CMS). The rule makes mandatory vaccination for all eligible staff at healthcare facilities that participate in the Medicare or Medicaid programs. RevCycle Intelligence reports that the interim final rule will be accompanied by a comment period. From CMS Administrator Chiquita Brooks-LaSure:

Ensuring patient safety and protection from COVID-19 has been the focus of our efforts in combatting the pandemic and the constantly evolving challenges we’re seeing. Today’s action addresses the risk of unvaccinated healthcare staff to patient safety and provides stability and uniformity across the nation’s healthcare system to strengthen the health of people and the providers who care for them.

The announcement was initially met with celebration from organizations like the American Hospital Association:

We welcome that the [Centers for Medicare and Medicaid Services] regulation provides time to come into compliance, offers guidance on medical and religious exemptions, clarifies interactions with state and local laws, and provides a level playing field across healthcare facilities. AHA has been supportive of hospitals that call for mandated vaccination of health care workers in order to better protect patients and the communities we serve.

According to Modern Healthcare, many industry stakeholders maintain lingering concerns about how the requirement will affect workforce shortages. LeadingAge, a senior care advocacy group, said in a statement from CEO and President Katie Smith Sloan that it appreciates the time the CMS has granted for compliance, but does harbor concerns:

The policy could further complicate staffing issues (including the prospect of additional departures) for our members who are already contending with longstanding workforce challenges exacerbated by the pandemic. We cannot overemphasize the need for staffing support and will continue to make our members’ needs known to the Administration and CMS.

Currently, most — but not all — of Arizona’s hospital employees are in compliance with vaccine requirements from their employers. The COVID-19 mandates have been implemented during a severe staffing shortage, according to AZCentral, but the hospitals that did share the number of employees who have quit or been terminated demonstrate that the percentage of workers lost does not appear to aggravate staffing issues. Banner Health, for example, reports 97% compliance with its COVID-19 employee vaccine policy.

The cause for staffing concerns is dire as COVID-19 spread continues. Colorado has reactivated crisis guidelines for staffing at healthcare systems as COVID-19 hospitalizations and infections continue to rise, according to the Associated Press. More than a third of hospitals reporting to the state said they expected a shortage of intensive care unit beds in the next week, and 40% of hospitals said that they were short staffed.

A federal judge ruled that Maricopa Community Colleges cannot enforce vaccine requirements for two nursing students who sued the district, claiming the mandate violated their free exercise of religion by not helping them complete their clinical rotations required for graduation, according to AZCentral. They both have declined to get vaccinated for religious reasons and their rotations were scheduled at the Mayo Clinic, which requires vaccinations for all workers.

Phoenix Children’s Hospital is being sued by two employees who claim the hospital was negligent with private health information. In an email sent to employees that was meant to outline the protocols to employees who had an approved exemption to the COVID-19 vaccine, the distribution list was inadvertently visible when the protocols were sent out, according to Fox 10 Phoenix.

TRANSCRIPT: Background Press Call on OSHA and CMS Rules for Vaccination in the Workplace

Vaccine Mandates — Large Employers

Over the weekend, the Fifth U.S. Circuit Court of Appeals in New Orleans issued a stay on the vaccine mandate for businesses that employ over 100 workers, issued through the Occupational Safety and Health Administration (OSHA). The mandate would apply to private businesses and employees who do not receive the vaccine by January 4 would be required to wear a mask and submit to weekly testing for COVID-19. Associated Press reports that the requirement would create exemptions for workers citing religious exemptions, individuals who work remotely and outdoor employees. The court said the rule raises “grave statutory and constitutional issues” and asked the federal government to explain why the stay should not be made permanent.

In a filing from the government on Monday, the federal government said that all cases against the mandate should be consolidated and that one of the circuit courts where a legal challenge has been filed should be chosen at random on November 16 to hear it. The Administration’s lawyers said there would be no reason to keep the mandate on hold, arguing that no employee needs to get the shot to comply until early December.

Arizona Attorney General Mark Brnovich also filed a lawsuit against the vaccine mandate, but this week an attorney for the U.S. Department of Justice (DOJ) said that there is no legal authority for Brnovich to sue over what is within the power of the president to deal with the pandemic. Brnovich alleges that the mandate will have a negative impact on the Arizona economy, an allegation that DOJ attorney Joseph DeMott dismissed as “purely conjectural,” according to the Arizona Capitol Times.

Arizona fails to submit credible evidence that the challenged vaccine mandates will hurt its economy. Given the extraordinary disruptions that COVID-19 has caused to workplaces around the country it is far more likely that Arizona will benefit from having a vaccinated workforce.

DeMott has also requested that U.S. District Court Judge Michael Liburdi deny the request of a federal employee to remain anonymous for the duration of the trial. According to the Capitol Times, the individual has not identified any threat of harassment or injury from being identified.

What transpires in the court room is public property. A plaintiff’s use of fictitious names runs afoul of the public’s common law right of access to judicial proceedings.

Governor Doug Ducey has also voiced his opposition to the mandate, maintaining the same line as the AG that the mandate is too burdensome on an economy in recovery, according to KJZZ.

After the difficulties that COVID-19 has posed for individuals, businesses and the current workforce shortages, the administration should be assisting with getting them back on their feet rather than imposing more regulatory burdens.

Vaccine Authorizations

Pfizer has requested authorization for its boosters of the COVID-19 vaccine to be recommended for anyone 18 years and older. Older Americans and those at higher risk of acute symptoms from COVID-19 have been able to receive a third-dose booster of the Pfizer vaccine since September. The Food and Drug Administration (FDA) had already signaled that it would move quickly to authorize the boosters for younger age groups, according to Associated Press.

AP also reports that members of the Mohave County Board of Supervisors are exploring ways to distance themselves from county news releases on vaccinations for children. Supervisor Hildy Angius suggested that the board include a disclaimer on releases that include information of federal officials approving COVID-19 vaccinations for children ages 5-11.

Something like ‘the following information has not been endorsed not recommended by the Mohave County Board of Supervisors,’ or personally I would add, ‘anyone with common sense.’

Anginus added that she believed the COVID-19 vaccinations for children were “insanity.”