by Dana Gentry, Nevada Current
July 28, 2021
With the “pandemic of the unvaccinated” striking younger victims, stretching hospital resources, and causing jitters among investors, a national patchwork of full and partial mask mandates is once again taking shape.
On Tuesday, Gov. Steve Sisolak announced masks will once again be required in Nevada, in accordance with the Centers for Disease Control guidance that even vaccinated individuals wear masks indoors.
Unlike last year, when masks provided the best defense against COVID, now a prophylactic waits at the ready in the form of safe and effective vaccines. But approximately half the U.S. population has chosen not to partake.
Should choice be eliminated from the equation for health care workers, first responders, law enforcement and others committed to public service? Should everyone be required to sign this social contract to block the genomic pathway to potentially more-lethal mutations in the future?
“There isn’t a legal framework to enact such a requirement right now,” says epidemiologist and UNLV Associate Professor Brian Labus. “You have laws in place that deal specifically with students but we don’t have a law on the books that mandates any sort of vaccination for anyone else.”
Adding the coronavirus vaccine to the list of required student vaccinations would be a lengthy process “with input from many stakeholders,” says Shannon Litz of the state’s Department of Health and Human Services, with the decision ultimately made by the State Board of Health.
Labus says a vaccine mandate “potentially could be done through an emergency mandate from the governor or the county, or the Legislature could take up the issue. Unfortunately, it becomes a political, and not scientific, issue at that point.”
Gov. Steve Sisolak, who has been praised from the left and criticized from the right for his handling of the pandemic, faces a re-election challenge next year.
Last week, he announced all state employees must be vaccinated against COVID or provide proof of weekly negative tests.
MGM Resorts International announced Tuesday employees who are not vaccinated must pay for weekly testing proving they are negative. Wynn Resorts was the first hotel company to require employee-paid weekly testing for the unvaccinated.
On Monday, dozens of health care agencies, including the American Medical Association, signed on to a letter urging that healthcare workers be required to get vaccinated.
“Increased vaccinations among health care personnel will not only reduce the spread of COVID-19 but also reduce the harmful toll this virus is taking within the health care workforce and those we are striving to serve,” said Dr. Susan R. Bailey, immediate past president of the AMA.
Sisolak’s office will not say whether the governor is considering mandating vaccines for healthcare personnel or others.
“If you’re not vaccinated you shouldn’t be coming to work,” Clark County Commissioner Tick Segerblom said last week as commissioners debated a mask mandate for employees in the valley. “UMC (University Medical Center) hospital had like a third of their employees vaccinated. That’s not acceptable.”
“Health facilities and hospitals should require that employees be vaccinated,” says David Orentlicher, the Director of UNLV’s Health Law Program and a state assemblyman.
“The thinking has been that public health authorities should try as many voluntary measures and incentives” as they think are plausible, he says. “If we see those voluntary measures aren’t adequate, just as we saw when we had the lockdown or mask mandate, you’d say we have to require them.”
Orentlicher cautions employers must guard against discrimination and make accommodations when possible.
“If you are so immunocompromised that you can’t take the vaccine, what are you doing working in medicine?” asks attorney J. Malcolm Devoy, who specializes in health law for Holland and Hart. “Now, somebody who has a bad enough cardiac history — maybe they could work in a hospital with accommodations.”
But as with most things COVID-related, uncertainty is the only sure bet and the threat of litigation looms large.
Firefighters, police and some health care workers are bound by union contracts. Would an emergency declaration supersede those agreements?
Labus, a member of the governor’s Medical Advisory Team, says it would.
“I suspect the reason you’re not seeing more decisive actions is because there are so many boxes that have to be checked, and threads that could unravel,” added Devoy, who said caution is warranted given the dearth of case law.
Emergency powers “are a blunt tool that work well in a crisis,” says Devoy. “Now that we’re taking a more nuanced approach to who gets vaccines and when, it makes a difficult case for emergency powers without being bogged down in litigation.”
On Monday, the Department of Justice issued a memo saying public agencies and private employers can require coronavirus vaccinations, even before the vaccines are fully authorized by the Food and Drug Administration.
The issue, according to the DOJ, was whether governments and businesses “can lawfully impose such requirements in light of the fact … that potential vaccine recipients are to be informed that they have the ‘option to accept or refuse’ receipt of the vaccine.”
The memo says Houston Methodist, the first health care facility to require vaccines for workers, imposed its mandate in April, which prompted 117 workers to file a lawsuit arguing they were being coerced.
The judge who tossed the case disagreed.
“Methodist is trying to do their business of saving lives without giving them the Covid-19 virus,” wrote District Court Judge Lynn Hughes, according to the DOJ memo. He went on to say employees can accept the vaccine or refuse it and “simply need to work somewhere else.”
The University of Indiana’s vaccine mandate was upheld last week by a federal judge, the memo says.
Hours after the DOJ memo’s release, U.S. Veterans Affairs became the first agency to mandate the vaccine for health care workers.
“You can mandate it all you want,” says Devoy. “You’re going to find people coming out of the woodwork claiming exemptions.”
Employers are better advised to offer incentives to get workers vaccinated, he says. The same goes for patrons.
“If someone asked me if I had a disease, I wouldn’t go to that place,” he says, noting that until COVID, it was unheard of for employers to quiz workers, let alone patrons, on their health.
“A year ago the Department of Labor said it’s ok to ask about COVID,” he says.
Orentlicher of UNLV”s Boyd School of Law says establishments can “refuse service, as long as you don’t do it in a discriminatory or unfair way. There are civil rights acts that limit your ability to deny service.”
“If you say across the board, ‘This is our rule. I want to make sure customers don’t get sick when they come patronize my business and I want to provide a safe environment for my workers,’ you should be fine,” he says.
Companies keeping what Devoy calls “vaccination rosters” should instead provide opt-in systems “that assume no one is vaccinated.”
“Have a nondiscriminatory way to put it that doesn’t have any political alignment,” he says. “Michael Jordan said it best in the 90s. ‘Republicans buy shoes, too.’”
Nevada Current is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Nevada Current maintains editorial independence. Contact Editor Hugh Jackson for questions: [email protected]. Follow Nevada Current on Facebook and Twitter.
