US states want repeal of mandatory vaccine for health workers

A year ago, the Center for Medicare Services and Medicaid [programa estatal americano que ajuda na cobertura de custos de saúde para pessoas de baixa renda] issued an interim final rule that required 15 types of health care organizations that receive Medicare or Medicaid funds ensure that their more than 2022 million employees are vaccinated against Covid-19. This was one of multiple mandatory vaccination orders covering, in addition to health professionals, private sector employees in large firms (the OSHA order — Occupational Safety and Health Administration — reached 84 million workers), federal contractors (one-fifth of the national workforce), 3.5 million federal employees, in addition to employees, contractors and volunteers from the Head Start educational assistance program. The government designed these orders to force American workers to choose between vaccinations or losing their jobs. Federal courts rejected all of them, except for healthcare professionals, which the Supreme Court allowed to continue. The government backtracked on OSHA’s order for private sector workers after the Supreme Court ruled that it exceeded the agency’s statutory authority to address job safety.

Now, a coalition of 22 states led by Austin Knudsen, Montana’s attorney general, has crafted a compelling case for rejecting mandatory vaccination of healthcare workers. health. States, based on a section of the Administrative Procedure Act that gives “an interested person the right to petition for the issuance, revision, or repeal of a rule,” have filed a petition seeking repeal with the Department of Health and Human Services (HHS ) and CMS (the part of HHS that administers the Medicare program and the federal scope of Medicaid).

Many of these states have challenged the rule before in two lawsuits — one led by Missouri and the other by Louisiana. District courts in both states ruled that the rule was defective and revoked its application on a preliminary basis. The government appealed for an emergency permanence of these injunctions, and the Supreme Court consolidated the two separate cases. A five-to-four majority found that the rule gave the HHS Registrar authority to “enact, as a condition of an institution’s participation in programs, such ‘requirements as it deems necessary in the interest of the health and safety of individuals who enjoy the services of HHS’. institution'”. This authority would include measures to prevent the transmission of disease and communicable infections within these institutions.

The Supreme Court suspended the injunctions of the two district courts, thus allowing the application of the order of vaccination while litigation to resolve the cases circulated through the lower courts. That litigation continues in the district courts. In so ruling, the Court relied on a conclusion by the clerk of the HHS that “a mandatory Covid- vaccination order will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”

The new petition reintroduces several legal arguments that, despite their merits, were made to the Supreme Court and rejected by a small majority of judges. But the petition is more effective in arguing that scientific circumstances have changed and thus undermine the HHS secretary’s justification that vaccinating employees protects patients. She claims that the medical evidence supporting the order was fragile when the decision was made and has become even less convincing as newer, more transmissible variants have become the predominant circulating viruses.

The rationale for imposing the order was that vaccines would protect medical workers from becoming infected and that even if they were infected, vaccines would make them less likely to transmit the virus to residents and patients in medical facilities. But early vaccine studies focused primarily on determining whether the vaccines protected against symptomatic infection with Covid-19, not against full transmission. They did not take into account mild or asymptomatic post-vaccination infections, nor did they study secondary transmission.

In addition, the studies were conducted before the advent of new, more transmissible viral strains. As of August 2021, nearly all US cases were of the then-new delta variant, which was associated with lower efficacy of vaccines against infection and disease, leading to higher numbers of post-vaccine infections in persons taking the full regimen and transmission to others.

Moreover, it has long been apparent that protection against infection, no matter the variant, declines with time after vaccination. From six to 12 months after vaccination, protection against infection is less, or half of what it was in the first two months .

The delta variant remained prevalent in November 2021, when the CMS edited the mandatory vaccination order , but was about to be supplanted by the much more transmissible omicron variant and its subvariants. In December, omicron was prevalent and led to a rapid spike in US daily case numbers, even among those vaccinated. And the CDC [Centro de Controle de Doenças] had already recognized in the summer of 2021 that “any person infected with omicron, regardless of vaccination status or whether or not they have symptoms, can spread the virus to others.”

When the Supreme Court published its January 2022 decision allowing the imposition of mandatory vaccination, vaccines had little or no effectiveness in limiting Covid infection and further transmission.

The government does not dispute the decline in vaccine efficacy. At a September 2022 hearing before the Court of Appeals for the Fifth Circuit (in full, with all judges present) dealing with mandatory vaccination of federal employees, counsel for the government said that when the order was issued last year, the vaccines were considered effective against the transmission of Covid-22 and the infection of servers . “The fact is, science has changed,” he admitted. “There are new variants and this justification in particular has weakened a bit, but there are still important justifications at play here, in terms of preventing serious illness in federal employees, which has a clear nexus to the federal work environment in terms of productivity and efficiency.”

While protecting the employees themselves from serious illness may or may not be sufficient for the purposes of a mandatory vaccination of federal employees (the Fifth Circuit has yet to decide ), it does not satisfy the legal authority cited by the Supreme Court in upholding the obligation for medical professionals with the requirements “necessary in the interests of the health and safety of individuals who enjoy the services of the institution”.

While I agree that healthcare workers get vaccinated to protect themselves from severe Covid, it is now difficult to justify forcing them to do so in the name of protecting patients. More effective infection control measures are now used in medical facilities.

Continuing with mandatory vaccinations under pain of dismissal risks worsening the national shortage of medical professionals. Hospital systems across the country are suffering from shortages of doctors, nurses, technicians, respiratory therapists and other hard-to-fill positions. On average, % of nursing homes nationwide report understaffing nurses and aides, and in many states the percentage is even higher. Twenty-four states report that *% or more of their facilities are understaffed, the top four states (Alaska, Minnesota, and Wyoming) pass from 60%.

In addition, continue with a mandatory vaccination order for the country This all ignores the fact that state and local governments—which historically, under the Constitution’s tenets of federalism, have been the seat of public health decisions—are better able to assess local conditions and determine the most appropriate policies to limit the transmission of diseases in their facilities. Likewise, private institutions can impose mitigation measures, as they have already done, including mandatory vaccination, for their facilities when conditions justify them.

The time has come to HHS and the Biden administration followed the science and removed all mandatory vaccination orders that are still being considered in various federal courts. The federal government’s legal authority to impose any of these has always been in doubt, and there is now no scientific or medical justification for such autocratic and potentially counterproductive measures.

Joel Zinberg is a physician and specialist in law, senior member of the Institute for Competitive Enterprise, associate clinical professor of surgery at the Icahn Mount Sinai School of Medicine in New York, and director of the American Public Health and Welfare Initiative at the Paragon Health Institute. He was General Counsel and Senior Economist at 2017- on the Board of Economic Consultants, where he specialized in health policy.

© 2021 City Journal. Published with permission. Original in English.

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