(CBS Baltimore) -- The COVID pandemic seemed to be waning in the spring. As case numbers fell and vaccination numbers rose, mask mandates eased, and people returned to offices. Life was moving toward some sort of new normal. It's since become clear that the pandemic wasn't ending so much as entering a new phase. The Delta variant has COVID case numbers climbing in parts of the country once again. Similar to the pandemic's early days, certain regions are running out of beds in their ICUs. Most of the new cases and virtually all of the resulting hospitalizations are among the unvaccinated. Experts believe that mass vaccination combined with vigilant masking is the only realistic path out of the pandemic. Vaccination mandates are being implemented across various levels of government and the private sector. On Thursday, President Biden announced broad vaccine requirements with the potential to affect approximately 100 million Americans. When the federal government's rules start hasn't been determined. But the Food and Drug Administration's (FDA) full approval of the Pfizer vaccine for use in anyone at least 16 years old strengthened the legal ground on which it will be built. Some Republican governors have promised to sue the administration for the pending rules, claiming them to be unconstitutional.
Cities And States Can Mandate Vaccines
A 1905 Supreme Court case upheld mandatory vaccination to end a smallpox epidemic in Massachusetts. The Jacobson v. Massachusetts ruling read, in part, "the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint."
A second decision in 1922 called Zucht v. King confirmed the matter. In that case, the city of San Antonio, Texas was sued for excluding students who weren't vaccinated for smallpox. The Supreme Court's decision read, in part, "long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination."
The history of our authorities implementing public health measures for the benefit of society dates back to colonial days. Quarantine laws, to prevent the spread of smallpox, existed back to the 17th century. States along the coast routinely required a ship's sailors and passengers to quarantine onboard before coming ashore. New York City often required immigrants to be isolated when they arrived. To this day, tuberculosis patients can be forced to isolate until they finish their medications.
Cities and states can mandate vaccines for their employees. And many already have. New York Mayor Bill de Blasio previously issued a mandate requiring all city employees to be vaccinated by September 13. Any of the city's roughly 400,000 workers who don't will be subject to weekly testing. Those who break the mandate can't go to work and won't be paid. The mayor mandated vaccinations for all school teachers and staff as well.
California has a similar rule in place for its government workers. Effective last month, the state's 238,000-plus government workers, along with its 2 million-plus healthcare workers, must be vaccinated or wear masks in a work environment. After the FDA's full approval of the Pfizer vaccine paved the way, other city and state governments across the country have implemented or are considering similar measures.
The Los Angeles Unified School District, the country's second biggest, will require all students 12 years of age or older to be vaccinated to attend in-person classes. Students must receive their first dose by October 3 and their second dose by October 31. Employees of the school district have to be vaccinated by October 15. The Culver City Unified School District was the first in the state to require student vaccinations.
New York City has also instituted broader mandates on the local level. Customers and employees of indoor dining, fitness and entertainment establishments have to show proof of vaccination. The rules started to phase in on August 16, with full enforcement by September 13. (Broadway League, the theatre industry's national trade association, previously announced that Broadway theatres must require attendees to be fully vaccinated.) While similar to mandates issued in France and Italy in July, New York City's was the first in the United States. San Francisco implemented similar restrictions in public places on August 20. And countless individual establishments in Chicago, Minneapolis, and across the country have their own requirements.
Some states have moved in the opposite direction, banning agencies from requiring proof of vaccination. As of early September, 20 states have banned proof-of-vaccine requirements by legislation or executive order. Some of these laws date back months, to when the country was in a different stage of the pandemic. The laws tend to apply to state and local governments, rather than private schools and private employers, and only prevent requiring vaccine proof. State officials can still encourage vaccinations. Some laws are linked to the vaccines' authorization for emergency use, meaning they no longer apply to the Pfizer vaccine.
Federal Government Attempting National Mandate
While cities and states have long had the power to implement vaccine mandates, it's unclear if the federal government can. According to the Congressional Research Service, a sort of think tank providing Congress with legal and policy analysis, "except in certain limited circumstances, including in the immigration and military contexts, no existing federal law expressly imposes vaccination requirements on the general population."
The federal government does have authority in certain areas that would support executive action to fight COVID. Congress could also effectively create a mandate by stipulating that states must require vaccines in order to receive certain types of federal funding. It seems the administration is going to test its authority.
On Thursday the president announced vaccine requirements that could affect up to 100 million Americans. "It's not about freedom or personal choice, it's about protecting those around you," Biden said in prepared remarks.
For starters, all federal workers and on-site contractors must be vaccinated. The President had previously stated that masking, socially distancing, and regular testing would be an option. The civilian workforce, separate from the military, numbers over 2 million. Mandatory vaccinations are moving ahead for the additional 1.4 million active-duty troops.
The Department of Labor's Occupational Safety and Health Administration (OSHA) is also developing a rule that would require companies employing 100 or more employees to mandate vaccinations among their workforce. That covers roughly 80,000 million Americans, by the government's estimation. The unvaccinated would need a weekly negative test to work. Failure to comply would open up companies to a $14,000 fine per violation.
The President's announcement also included new vaccination requirements for healthcare institutions that accept Medicare and Medicaid and staffs at Head Start programs.
The move marks a clear shift for the administration. While the president strongly supports vaccines for anyone who is eligible and healthy enough, he didn't previously think it was the federal government's place to mandate them for citizens. The divided politics of the nation were likely a big reason why. A vaccination mandate may push some of those who are on the fence into receiving shots, but maybe not enough to make a meaningful difference. At the same time, it will harden the anti-vaccine position of all those who are against it.
The move is already stirring up resentment among Republicans. Various state governors as well as the Republican National Committee have come out against the yet-unwritten rule. Republican Governors Kristi Noem of South Dakota and Brian Kemp of Georgia have threatened to sue, promising to "defend freedom" and "stop this blatantly unlawful overreach" respectively. Republican Governor Greg Abbott called the vaccine mandate "an assault on private businesses."
The president, for his part, seems resolute in the change of direction. "The bottom line — we're going to protect vaccinated workers from unvaccinated coworkers."
Employer Vaccine Mandates Gaining Popularity
To date, many employers do not require employees to be vaccinated. But it's well within an employer's rights, and plenty of high-profile companies have instituted vaccine mandates on their own. Disney, Google, Morgan Stanley, and Netflix are all on the list, not to mention many hospitals and healthcare systems. Banner Health, Arizona's largest healthcare system, mandated vaccinations for its employees, despite that state's position on mandates.
Many of the companies announcing mandates are comprised mostly of office workers, who are largely able to work from home and largely reluctant to work alongside unvaccinated coworkers. They are also companies that has generally thrived during the pandemic. Companies that employ large numbers of manufacturing, warehouse and food service and production workers are less willing to require vaccines. They fear pushing away workers in what's become a difficult market for hiring them.
For that reason, the announcement from Tyson Foods requiring vaccines is particularly notable. All of the company's employees must be vaccinated by November 1, with executives and office workers facing shorter deadlines. The nation's largest meat producer employs 139,000 people, fewer than half of whom were vaccinated at the time of the August announcement. The company has endured multiple COVID-related shutdowns at its various processing plants throughout the pandemic. Workers have died of the virus, and families have sued the company for failing to take the necessary preventative measures.
United Airlines, another company hit hard by the pandemic and the resulting shutdown of the travel industry, announced an employee mandate of its own. It was the first among airlines. All 67,000 domestic employees must be vaccinated five weeks after the FDA fully approves a vaccine, meaning five weeks from August 23. Those who fail to send an image of their vaccine card to the company will be terminated. (Certain health and religious exemptions will be allowed.) United has no plans to require vaccinations among passengers.
Drugstore chain CVS updated its vaccine requirements shortly after the FDA announcement. All corporate and patient-facing employees have until the end of October to be vaccinated. Pharmacists have until the end of November. The President's change of position is likely to spur other companies to act on their own, even before they're compelled to by law. According to one recent survey of about 1,000 companies taken before the President's announcement, 21 percent claimed to already have vaccine requirements, with 52 percent planning to implement one this year.
Governments have offered everything from lotteries to scholarships to encourage vaccination. Companies have given their employees bonuses, gift cards, and paid time off. But vaccination rates have slowed from over 3 million per day to around a million, and COVID cases are steadily rising. With giveaways reaching the ceiling of their effectiveness, governments and businesses are taking a harder line.
COVID Pandemic Continues
Vaccine mandates will take effect in the coming weeks, and more will follow as additional cities, states, and private employers take up the mantle. Any of the roughly 80 million unvaccinated people who receive their first shot today and their second shot three weeks later won't be fully protected until two weeks after that. And full FDA approval won't cause many of the unvaccinated to rush out and get their first shot. Meanwhile, people will continue to be infected, and COVID case numbers will continue to rise.
The seven-day average of new reported coronavirus cases has jumped to about 136,000 a day from under 12,000 three months ago. That's still lower than January's peak and the previous seven-day average.
The full vaccination rate is 53.4 percent for the country. But state percentages range from 68.4 percent in Vermont to 39.6 percent in Alabama. Many counties across the country have vaccination rates lower than that. And to state the obvious, the virus transmits within these smaller communities.
Americans have received over 377 million doses, with 62.7 percent of the population having received at least one dose. Vaccination numbers continue to increase at a rate just under a million doses per day. The Centers for Disease Control and Prevention (CDC) had advised that the fully vaccinated could forgo masks and social distancing in most indoor and outdoor settings. Their revised guidance recommends that vaccinated people in areas with higher COVID transmission revert to wearing masks indoors again.
Originally published Monday, August 9, 2021 at 2:35 p.m. ET.
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