The week of July 26, 2021 heralded multiple developments relating to COVID-19 that would be significant if measured independently, but escalate to a monumental impact because of their synchronicity. Increased infections across the United States and updated information regarding the B.1.617.2 (Delta) variant of the Coronavirus catalyzed this flurry of activity in the healthcare regulatory community. The week began with the unprecedented joint statement of almost 60 national health organizations endorsing a mandatory vaccination policy for all non-exempt healthcare workers, which triggered employers in the healthcare industry and beyond to announce mandatory vaccination policies. The federal government announced that long COVID may be a disability under the Americans with Disabilities Act (ADA) the same day. The Centers for Disease Control and Prevention (CDC) issued updated Interim Public Health Recommendations for Fully Vaccinated People on July 27, 2021. On July 29th, President Biden announced new vaccination attestation requirements for federal employees and contractors and vaccination incentives. This article briefly discusses the potential magnitude of this historic point in time on the continuum of the pandemic’s unfolding story.
The Joint Statement of National Healthcare Organizations
In light of the availability of vaccinations and the recent COVID-19 surge, approximately 60 national healthcare organizations worked together to develop a consensus position supporting mandatory vaccination of all workers in health and long-term care. The resulting Joint Statement of Major Medical Organizations describes the vaccination of healthcare workers as “the logical fulfillment of the ethical commitment of all health care workers to put patients as well as residents of long-term care facilities first and take all steps necessary to ensure their health and well-being.”
The group, comprised of signatories such as the American Hospital Association, American Medical Association, the American Nurses Association, American Academy of PAs, American Pharmacists Association, the National Pharmaceutical Association, and the American Academy of Family Physicians, observed:
Unfortunately, many health care and long-term care personnel remain unvaccinated. As we move towards full FDA approval of the currently available vaccines, all health care workers should get vaccinated for their own health, and to protect their colleagues, families, residents of long-term care facilities and patients. This is especially necessary to protect those who are vulnerable, including unvaccinated children and the immunocompromised. Indeed, this is why many health care and long-term care organizations already require vaccinations for influenza, hepatitis B, and pertussis.
We stand with the growing number of experts and institutions that support the requirement for universal vaccination of health workers. While we recognize some workers cannot be vaccinated because of identified medical reasons and should be exempted from a mandate, they constitute a small minority of all workers. Employers should consider any applicable state laws on a case-by-case basis.
Existing COVID-19 vaccine mandates have proven effective. Simultaneously, we recognize the historical mistrust of health care institutions, including among many in our own health care workforce. We must continue to address workers’ concerns, engage with marginalized populations, and work with trusted messengers to improve vaccine acceptance.
Almost as if part of a choreographed response, employers around the country announced mandatory vaccination policies. For example, The Department of Veterans Affairs' Press Release issued on July 26, 2021, advised that the VA’s Title 38 employees, including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, expanded-function dental auxiliaries and chiropractors, who work in Veterans Health Administration facilities, visit VA facilities or provide care to VA service recipients, will have eight weeks to become compliant. Employees will receive the vaccination at no personal costs at any VA facility and will receive four hours of paid administrative leave upon proof of vaccination. California Governor Gavin Newsom implemented the first-in-the- nation vaccination mandate for California state employees and health care workers on the same day. All affected workers must either show proof of vaccination or be tested at least once per week. Unvaccinated workers will submit to testing at least once per week and will be required to wear appropriate PPE.
The Americans with Disabilities Act
On the 31st anniversary of the ADA (July 26, 2021), the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) jointly published guidance regarding how "long COVID" can be a disability under the ADA, Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act. This announcement formally recognized that some Americans afflicted by COVID-19 do not recover quickly and suffer long-term symptoms, ranging from respiratory complications, to fatigue, to cognitive impairment, to emotional and behavioral disorders, and are entitled the protections afforded by law.
On February 23, 2021, HHS launched a new initiative to study the symptoms of "long COVID." Congress has provided $1.15 billion in funding to the NIH over four years to support this research. In his announcement of the initiative, National Institute of Health Director Dr. Francis Collins, explained then:
Often referred to as “Long COVID”, these symptoms, which can include fatigue, shortness of breath, “brain fog”, sleep disorders, fevers, gastrointestinal symptoms, anxiety, and depression, can persist for months and can range from mild to incapacitating. In some cases, new symptoms arise well after the time of infection or evolve over time. In December, NIH held a workshop to summarize what is known about these patients who do not fully recover and identify key gaps in our knowledge about the effects of COVID-19 after the initial stages of infection. In January, I shared the results from the largest global study of these emerging symptoms. While still being defined, these effects can be collectively referred to as Post-Acute Sequelae of SARS-CoV-2 infection (PASC). We do not know yet the magnitude of the problem, but given the number of individuals of all ages who have been or will be infected with SARS-CoV-2, the coronavirus that causes COVID-19, the public health impact could be profound.
Since the designation of “long COVID” as a recognized disability is new, employers and employees alike may have questions regarding the types of accommodations that are available. The United States Department of Labor has a blog that may prove helpful in evaluating this topic. Guidelines from the Equal Employment Opportunity Commission (EEOC) regarding the application of the ADA to COVID-19-related issues have not been updated yet to incorporate long-COVID symptoms specifically, but an update is anticipated.
CDC Updated Interim Public Health Recommendations for Fully Vaccinated People
On July 27, 2021, the CDC released Updated Interim Public Health Recommendations for Fully Vaccinated Persons. Significantly, this update reversed previously issued guidance for fully vaccinated persons to abandon mask usage in indoor spaces based upon new data regarding the increased spread of COVID-19. The new recommendations:
- Updated information for fully vaccinated people given new evidence on the B.1.617.2 (Delta) variant currently circulating in the United States;
- Added a recommendation for fully vaccinated people to wear a mask in public indoor settings in areas of substantial or high transmission;
- Added information that fully vaccinated people might choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated;
- Added a recommendation for fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 to be tested 3-5 days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result; and
- Recommend universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status.
The updated CDC recommendation relating to masks in schools catalyzed South Carolina State Superintendent of Education Molly Spearman to encourage students and teachers to wear masks in schools during the upcoming school year and to urge eligible people to get vaccinated during a press conference, as reported by The State, despite a state budget provision that prohibits a mask mandate in public schools for the 2021-2022 school year. Superintendent Spearman describes vaccination and masking as the solution for a “normal” school year.
As of July 22, 2021, only44% of South Carolina residents were fully vaccinated and 50% of eligible South Carolina residents have received at least one dose of the COVID-19 vaccine, according to the South Carolina Department of Health and Environmental Control (DHEC). The latest vaccination data shows that 816,007 South Carolinians have received at least one dose of the Moderna vaccine, and 1,189,885 residents have received at least one dose of the Pfizer vaccine. Another 141,039 residents have received the single-dose Janssen, which means they are already fully vaccinated. (Id.)
President Biden’s Mandate and Recommendations
On July 29, 2021, President Biden announced several COVID-19 related initiatives intended to bolster the nation’s response to the recent surge in infections and hospitalizations. The White House released a Fact Sheet summarizing several new initiatives at the federal level, as well as recommendations for state and local governments.
First, every federal government employee and onsite contractor will be required to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job, physically distance from all other employees and visitors, comply with a weekly or twice-weekly screening testing requirement, and be subject to restrictions on official travel. President Biden urges private sector employers to follow this model. Second, President Biden announced his instruction to the Department of Defense to evaluate the addition of the COVID-19 vaccination to the list of mandatory vaccinations for U.S. service members. Third, the federal government will now offer small and medium-sized businesses expanded reimbursement for providing paid leave to employees to become vaccinated, including paid leave for vaccinating their children. Fourth, President Biden called upon states, territories, and localities to use resources provided by The American Rescue Plan (ARP) to incentivize vaccination by offering $100 to anyone who gets vaccinated.
Conclusion
The fluidity of the Coronavirus pandemic has challenged resources and fostered resilience since the declaration of a public health emergency in March of 2020. The flurry of activity during the week of July 26, 2021, reflects a concerted effort by multiple stakeholders to respond to recent changes presented by the rise of the Delta variant in order to avoid a return to the pervasive restrictions and closures of the past year through utilization of tools that were not readily available at the pandemic’s outset.
