Editor’s Note: Jonathan Reiner, MD, is a CNN medical analyst and professor of medicine and surgery at George Washington University. The views expressed in this commentary belong to the author. View more opinion on CNN.
This past summer’s Covid-19 surge, which burned through large swaths of the country, peaked in early September after reaching about 160,000 cases per day. The subsequent decline in cases was steep, but after two months, infections in the United States are rising again.
We have tools to blunt the escalation of new cases, but we must act now with a sense of urgency – and that means intensifying efforts to increase vaccination rates in all age groups, using a range of strategies including broad vaccine mandates such as the Biden Administration’s requirement for businesses employing more than 100 workers to have employees get vaccinated or submit to weekly testing.
Unfortunately, last week the US Court of Appeals for the 5th Circuit affirmed a previous stay of Biden’s new vaccine mandate. In response, the Occupational Safety and Health Administration has temporarily suspended enforcement of the rule which was set to fully take effect on January 4. The court’s decision was ill-conceived and risks needlessly prolonging the pandemic in the United States.
Although almost 196 million Americans are now fully vaccinated, this number amounts to only 59% of the US population. Despite easy vaccine availability in the country for more than six months, 30% of adults are not fully vaccinated. It’s not clear what proportion of the population must be inoculated to attain community immunity, but Belgium currently has one of the world’s highest Covid-19 case rates despite having completely vaccinated 74% of its population. Germany has vaccinated 10% more of its population than the United States but its seven-day incidence rate hit a record of 336.9 cases per 100,000 people this week, up from 249.1 cases reported last week.
As countries in Europe see a surge in cases, the World Health Organization said to be “very worried” and flagged that, at the current pace, over 500,000 more deaths could be recorded by March. A winter spike in Covid-19 cases has been expected because the virus spreads more easily as people spend more time indoors, but the magnitude of this latest surge will be dictated by the level of vaccination in the community and we must do better.
In just 11 months, the US has managed to administer more than 437 million doses of vaccines, a remarkable achievement, but with well over 100 million people still unvaccinated, the level of immunity is not nearly high enough to ward off a new surge. Over the past 14 days, cases in the US have risen 17%, now averaging more than 85,000 cases per day. Hospitalizations and deaths are still declining, but the rate of decline is slowing, and will likely soon start to rise again.
To prevent a large winter Covid-19 spike, we must first and foremost vaccinate millions of people and do so quickly. The latest Kaiser Family Foundation poll shows that 20% of American adults say they will definitely not get the vaccine or will do so only if required. For many in this hard-core resistant minority, only a mandate linked to their job is likely to sway their decision.
Vaccine mandates are not new to the United States. All 50 states, the US Virgin Islands, Puerto Rico and the District of Columbia mandate vaccines for children attending schools. The US Department of Defense requires 17 different vaccines for military personnel. Many health care facilities require an annual influenza vaccination for all employees.
The Supreme Court of the United States has previously ruled in favor of a vaccine mandate. Writing for the majority in Jacobson v. Massachusetts in 1905, which upheld the state’s smallpox vaccine requirement, Justice John Marshall Harlan wrote, “But, 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.” Harlan continues, “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
Earlier this month a federal judge in Texas upheld United Airlines’ Covid-19 vaccine mandate, and the Equal Employment Opportunity Commission has said that federal anti-discrimination laws don’t prohibit employers from requiring the vaccines for employees.
The early experience with Covid-19 vaccine mandates shows that when faced with a choice between vaccine compliance and losing a job, nearly all employees choose to get vaccinated. After United Airlines required all employees to receive a vaccine, 99.5% of its US-based employees complied with the policy. As of November 1, 93% to 99% of members of the military services had been vaccinated. The percentage of New York City firefighters who received at least a first dose of vaccine jumped six points in the past week, and 27 percentage points since Mayor Bill de Blasio announced the mandate on Oct. 19.
Nonetheless, speaking about the decision by the US Court of Appeals for the 5th Circuit in New Orleans to affirm the stay on Biden’s mandate, Judge Kurt Engelhardt wrote, “The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces.” Using politically charged language, the judge continued, “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even or perhaps particularly when those decisions frustrate government officials.”
There are several other pending legal actions that also seek to block the national vaccine mandate, some focusing on whether OSHA, which was created by Congress to assure “safe and healthful working conditions and to preserve our human resources” has overstepped its charter. It seems likely that the fate of the administration’s vaccine mandate will ultimately be decided by the Supreme Court. As we continue to face a highly contagious and lethal pathogen, time is of the essence.
While the Court’s decision is uncertain, it is abundantly clear that if we are to prevail against this pandemic, many more people must be vaccinated. Vaccine mandates are a crucial public health tool that have been shown to significantly increase vaccine compliance. On Thursday, the American Medical Association and more than 60 other groups urged the nation’s employers to voluntarily implement the Biden Administration’s vaccine mandate plan. Hopefully, the Supreme Court will quickly decide if a broad vaccine mandate is constitutional, and ultimately if we are a country that is one for all, not all for one.
