On August 12, Dignity Health, parent company of Yavapai Regional Medical Center, announced that it will require all employees to be vaccinated against Covid-19 by the first of November. Other health organizations are saying they will soon join. Some employees and their allies in the community question the legality of this: is such a requirement going against the 14th amendment or other laws? Even if legal, is it a wise move?
Ahead of the official Dignity announcement, on August 8 witnesses say a group of around 40 gathered at the hospital entrance and marched to the employee parking lot across the Five Points intersection, protesting the new mandate. One YRMC employee who encountered the group said that while the action did not attract many fellow employees, it did include “some of my favorite and most respected coworkers,” and, “The very best critical-care doc was out there trying to talk to them.”
“As healthcare providers we have a responsibility to help end this pandemic and protect our patients, our colleagues, and those in our communities, including the most vulnerable among us,” said Lloyd H. Dean, CEO of Dignity Health. “An abundance of evidence shows that the vaccines are safe and highly effective. Throughout the pandemic we have made data-driven decisions that will help us best fulfill our healing mission, and requiring vaccination is critical to maintaining a safe care environment.”
The American Hospital Association (AHA),of which Dignity Health is a member, publicly announced July 21 that it is “committed to protecting the health and wellbeing of healthcare personnel and the patients and communities that they serve.”
The group further stated, “the best scientific evidence demonstrates the vaccines are safe, effective at reducing both the risk of becoming infected and spreading the infection to others, a significant risk of transmission both before the onset of symptoms and in the absence of symptoms. These risks are substantially higher among unvaccinated individuals, and Covid-19 infections pose a substantial risk of severe illness and death and may lead to long-term adverse impacts to health. These risks are higher among those individuals with certain underlying health conditions, like many patients in hospitals or who are seen in hospital-based ambulatory settings.
“To protect all patients, communities and personnel from the known and substantial risks of Covid-19, the AHA strongly urges the vaccination of all healthcare personnel.”
The group says that to protect healthcare workers and the community, it supports healthcare facilities and hospitals that adopt a mandatoryCovid-19 vaccine, with exemptions for medical and religious reasons.
CDC, OSHA and HIPAA weigh in
The Centers for Disease Control and Prevention (CDC)recommends that medical personnel who aren’t fully vaccinated stay six feet apart and wear masks. But how can anyone do the job if they have to stay six feet from patients?
The Occupational Safety and Health Act (OSHA)defines the legal framework for obligation of all business are, including, “Employers have the responsibility to provide a safe workplace. Employers must provide their employees with a workplace that does not have serious hazards and must follow all OSHA safety and health standards. Employers must find and correct safety and health problems.”
Marjorie Taylor Greene, a Republican member of Congress from Georgia, referred to the Health Insurance Portability and Accountability Act when asked if she was vaccinated, calling the question “a violation of my HIPAA rights.” She claimed that HIPAA protects her from being asked whether she has been vaccinated.
The HIPAA Journal states: “The Health Insurance Portability and Accountability Act was created primarily to modernize the flow of healthcare information, stipulate how personally identifiable information maintained by the healthcare insurance industries should be protected from fraud and theft, and address limitations on healthcare insurance coverage. ”According to this, HIPAA protects your medical information from falling into the wrong hands. It does not protect anyone from questions about their vaccination status.
This leads to the question of whether requiring proof of a Covid vaccination for employment is legal.
Public safety vs. individual choice
The 14th Amendment to the US Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” So does individual freedom supersede promoting the general welfare?
We find the answer to this in legal precedent and history. Since the1900s 300 million people have died of smallpox, a highly contagious and deadly viral disease. To fight it the first vaccine was created in 1796 and a massive global vaccination campaign began, eradicating the disease in 1977.
Ending the smallpox pandemic prevented millions of deaths. It also removed the need to treat and prevent the disease, which saved many countries billions of dollars.
Starting in December 1904 a Massachusetts law allowed cities to require residents to be vaccinated against smallpox. Cambridge adopted such an ordinance, allowing few exceptions. This requirement was not without controversy. Cambridge pastor Henning Jacobson refused to accept the free vaccine and took his argument to court, arguing that a law requiring him to vaccinate violated the 14thAmendment.
“It is within the police power of a state to provide for compulsory vaccination.” —Justice Louis Brandeis
Four months later the Supreme Court ruled in Jacobson v. Massachusetts that under state law, local health authorities could legally enforce vaccinating adults because it protected the public health and safety of its citizens. Justice John Marshall Harlan concluded that the state had the ability to enact vaccine laws to protect citizens.
In1922 other courts came to similar conclusions. San Antonio, Texas excluded students from public and private schools who were not vaccinated for smallpox, including Rosalyn Zucht. In Zucht v. King, her attorneys argued that the vaccine policy violated Zucht’s due-process rights. Justice Louis Brandeis wrote in the Court’s decision, “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.”
In a more recent case, decided August 2, 2021, eight Indiana University students sued the school over a mandatory vaccine policy. Students could apply for a medical or religious exemption if they agreed to wear masks and undergo Covid-19 testing. A federal appeals court ruled in favor of the university, finding there was not enough evidence that the students’ constitutional rights were being violated.
In each case the court found that the laws were of benefit to public health. Is that true of Covid and its Delta variant?
Nothing to sneeze at
According to the Johns Hopkins School of Medicine, confirmed US Covid cases at this writing number close to 38 million, with deaths close to630,000. In Yavapai County we’ve had 23,000 cases, with almost 600fatalities, and daily we confirm 87 more cases, with one of those people likely dying. According to one study, 75% of Covid survivors still had symptoms six months later. These numbers increase daily; for the most recent numbers, check coronavirus.jhu.edu.
According to the Mayo Clinic, “Vaccines to prevent coronavirus disease 2019(Covid-19) are perhaps the best hope for ending the pandemic, ”enumerating their very high efficacy in detail. The August 23 full approval of the Pfizer-BioNTech mRNA vaccine, now labeled Comirnaty, by the Food Drug and Administration for people aged 16 and older further confirms its safety.
Anew study from Imperial College London suggests that unvaccinated people are three times as likely than those who are fully vaccinated to test positive for Covid-19. Researchers also said fully vaccinated people are less likely to transmit the virus to others. Their analysis, published August 17, reveals that more than 90% of Covid-19cases and deaths in June and 86% of hospitalizations were among those not fully vaccinated.
Writing on the Department of Health and Environmental Control website, Dr. Jane Kelly states: “The overwhelming majority of people who are getting hospitalized and dying from Covid-19 are those who are not fully vaccinated. ”The site further states that DHEC data show more than 90% of Covid-19 deaths and hospitalizations after14 days were unvaccinated individuals
Dignity Health says it is requiring all employees to have Covid vaccines because it protects their patients, community and colleagues. It has also stated that there are options for those that can’t be vaccinated due to medical or religious concerns. The AHA is urging all who work in health care to get vaccinated because it will protect the workers and the community.
With three major court precedents agreeing, it seems safe to conclude that Dignity Health is working within the law by requiring employees to vaccinate, and may even be legally obligated to take such measures to protect its employees and patients from the pandemic.
Beyond the legal argument, for our unnamed YRMC employee it’s more personal: “It’s really horrible how it is dividing longtime friends and coworkers who are great healthcare professionals. Honestly, I am both baffled and heartbroken.”