Last Thursday, President Joe Biden announced new vaccine requirements for the American public, mandating COVID-19 vaccinations for 100 million Americans including all healthcare workers.
The Department of Labor’s Occupational Safety and Health Administration (OHSA) has been directed to develop a rule that will require all employers with 100 or more employees to ensure their workers are fully vaccinated or produce a negative COVID-19 test. The Centers for Medicare and Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most healthcare settings that receive Medicare or Medicaid reimbursement, including nursing home and hospital staff, WhiteHouse.gov explains. CMS will be releasing its own interim rule in October for healthcare workers.
According to Forbes, the order may leave out employees at assisted living facilities that only accept private pay residents, independent living facilities and home care agencies. It is currently unclear if the new mandate will affect temporary health workers, part-time staff members, contractors or other gray market aides — people who work off the books.
National Law Review published a series of suggestions for employers concerned about how these rules may impact their business and suggests preparing employee messaging strategies in order to combat potential staffing shortages. Suggestions include collecting a sufficient number of COVID-19 tests in advance, which The New York Times notes can be assisted by Amazon, which announced they would be shipping tests at cost to assist with the president’s plan.
Arizona’s Response and Employer Preparation
Governor Doug Ducey was one of the first to issue a public response to the president’s order last Thursday, decrying the move as “unprecedented and dangerous” in a Tweet. He also questioned the number of workers that would lose employment and asked “How many kids [will be] kept out of classrooms?”
Subsequently, Arizona Attorney General Mark Brnovich filed the first lawsuit aiming to block the vaccine requirements. Brnovich’s suit bizarrely claims that the Biden administration is treating U.S. citizens and legal immigrants differently from people caught crossing the border, many of whom are offered the vaccine but are under no obligation to take it, according to Associated Press.
Paul Bender, a constitutional law professor at Arizona State University, told AP that Brnovich’s argument is a bit of a stretch:
It’s not a sensible argument. It’s worse than nonsensical. It’s really laughable.
If immigrants are living in the U.S. without documentation and working without authorization at an employer covered by the vaccine rules, they will have to follow them and get vaccinated. A.G. Brnovich is currently running in the Republican primary for U.S. Senate to challenge Democratic U.S. Senator Mark Kelly.
Arizona labor attorneys, on the other hand, say that the law holds water and will be pretty formidable to overturn. Shefali Milczarek-Desai, director of the Workers’ Rights Clinic at the University of Arizona College of Law said told Capitol Media Services that the key is rooted in OSHA’s authority to have safe workplaces.
Not only is this something that OSHA can do but it’s something OSHA’s always done in the past.
Arizona Attorney David Selden, who represents employers in issues like OSHA compliance, agreed.
There have already been OSHA reviews and inspections based upon COVID protocols. We have situations, even in Arizona, where an employee may make a complaint to OSHA.
Meanwhile Arizona employers are already gearing up for compliance. On Monday Northern Arizona Healthcare announced the requirement of full COVID-19 vaccination for all employees. Additionally, Scottsdale-based Cadence Education LLC and Matrix Medical Network will require vaccination of their employees — 5,900 and 5,000, respectively — according to Phoenix Business Journal.
National Stakeholder Response
Industry representatives were quick to issue careful responses, on the whole both supportive of widespread vaccine incentives and also hesitant about exacerbating worker shortages already magnified by the COVID-19 pandemic. The American Hospital Association‘s President and CEO Rick Pollack was one of the first with a response:
As a practical matter, this policy may result in exacerbating the severe worker shortage problems that currently exist. Consequently, given the critical challenges that we are facing in maintaining the resiliency of our workforce… we call on the Administration to work with us as partners in developing aggressive and creative strategies to address this matter to ensure that hospitals and health systems on the front lines of fighting the battle against COVID-19 have the necessary human resources to both win this battle and maintain essential health services for the patients and communities we serve.
According to Fierce Healthcare, major union National Nurses United said last month that hospitals are deliberately failing to staff units with enough nurses in order to maximize profits. The Federation of American Hospitals responded that facilities are doing everything they can, but several large systems have reported that higher labor costs are a major burden to their staffing issues.
National Nurses United also published a statement in response to the Biden administration’s announcement, agreeing that vaccination is a critical aspect of a public health program for infection control, but made it clear that they support a multiple-measure approach to infection control.
There is no such thing as a pandemic of only the vaccinated. The science of epidemiology tells us there is just one deadly, global pandemic that has not yet ended, and we are all in it together. To get out of it, we must all act together. All of us.
A New York state lawsuit could bring a glimpse into what the Biden administration will have to combat to move forward with the order. On August 28, the state issued an order requiring at least a first shot for all healthcare workers at hospitals and nursing homes by September 27, ABC News reports. A federal judge in Utica temporarily blocked the state of New York from forcing medical workers to get vaccinated fin response to lawsuit from 17 health professionals. The plaintiffs claimed that their rights were violated with a mandate that disallowed religious and medical exemptions.