On October 15, U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra signed an order to renew the federal public health emergency due to COVID-19. The extension will last for 90 days, into mid-January 2022. This is the seventh time that the COVID-19 health emergency has been extended since it began January 31, 2020 under previous HHS Secretary Alex Azar. Under the public health emergency, a variety of special regulatory, administrative, and funding policies will remain in place.
Details of National Employer Vaccine Mandate Remain Unclear
Last month, President Joe Biden (D) and his administration announced COVID-19 vaccine requirements for federal employees and contractors and for servicemembers in the U.S. Armed Forces. The Biden Administration also announced that the Occupational Safety and Health Administration (OSHA) is developing a rule that employers with 100 or more employees must require their employees to be vaccinated against COVID-19 or test for the disease weekly. OSHA is a federal agency within the U.S. Department of Labor that regulates workplace safety.
On October 12, OSHA sent a draft of the rule to the White House Office of Information and Regulatory Affairs (OIRA); OIRA review is an early step in the federal rulemaking process. Details about the rule, including exactly what it will require, how it will be enforced, and its legal basis, have not been made public. The rule is likely to face multiple legal challenges from employers and state governments; a coalition including most Republican state attorneys general recently issued a letter promising to challenge the rule in court.
Earlier this week, a group of associations and large employers met with White House officials to discuss their concerns about the rule, including issues of confidentiality, testing alternatives to employee vaccination, and risks that the rule will exacerbate existing labor and supply chain issues. Participating associations included the U.S. Chamber of Commerce, National Association of Manufacturers, and HR Policy Association.
In related news, the Centers for Medicare and Medicaid Services (CMS) have been directed to develop a rule requiring vaccination or testing for workers in healthcare settings that accept reimbursements from CMS.
State Government Begins Requiring Weekly Testing for Unvaccinated Employees
As we reported last month, as of October 18 the state of Wisconsin began requiring its employees, interns, and contractors who have not verified their COVID-19 vaccination status with the state or who have confirmed that they are not fully vaccinated against COVID-19 to undergo weekly testing for the disease. The state Department of Administration (DOA), which administers employment policies for the executive branch, has issued a guidance document explaining the new policy.
Employees of the Wisconsin Legislature and the state court system are not affected by this requirement. Unvaccinated state employees who work from home and do not interact with other state employees or members of the public as part of their job are exempt from the weekly testing requirement. According to DOA, as of September 10, nearly 70 percent of Wisconsin’s executive branch employees reported that they were at least partially vaccinated.
In a September 14 press release announcing the testing requirement for unvaccinated employees, DOA Secretary Joel Brennan stated that “as part of our efforts to manage the state workforce, we’re looking to every tool at our disposal to address the Delta variant, including testing, wearing masks, and vaccination.” In a statement issued later that day, Senate Majority Leader Devin LeMahieu (R-Oostburg) called the policy “constitutionally suspect and a flagrant invasion of medical privacy.”
Wisconsin COVID-19 Data
As of October 21, Wisconsin had administered about 6.47 million doses of COVID-19 vaccines, with 3.19 million Wisconsin residents or 54.8 percent of the state’s population fully vaccinated. The state’s seven-day average of new confirmed cases was 1,869 cases per day. That number peaked in November 2020 at around 6,500 cases per day. About 8,312 people with COVID-19 have died in Wisconsin.
Over the first six months of 2021, the seven-day average of positive tests out of total tests declined, from 10.2 percent on January 1 to 0.9 percent on June 29. It has since risen to 7.4 percent as of October 21. In 2020, the seven-day average of positive tests out of total tests peaked at over 17 percent in November.
Vaccine and testing data are from the Wisconsin Department of Health Services (DHS). Vaccine appointments can be scheduled using the Wisconsin COVID-19 Vaccine Registry. All U.S. residents aged 12 years and older are eligible to receive a free COVID-19 vaccine.