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About the series
The Supreme Court of the United States overturned the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) that would have required employers with more than 100 employees to implement a vaccine or testing mandate next month. The Supreme Court allowed the Centers for Medicaid Services vaccine mandate for healthcare delivery organizations to go forward. A directive that federal contractors have a vaccine mandate in place is currently subject to an injunction by the Eleventh Circuit Court and was not part of the Supreme Court decision.
The Omicron variant is so contagious that very high levels of community vaccination are necessary to prevent outbreaks, and vaccine mandates are the only proven way in the U.S. to achieve to such high vaccination rates. This decision disappointed many public health advocates and will lead to less community protection from future outbreaks.
The Supreme Court decision does not prohibit employers from mandating vaccination. The court only held that OSHA cannot mandate these. Many employers have vaccine mandates in place, and they are likely to keep them because they are effective.
Additional employers may implement vaccine mandates in the coming weeks and months as they assess the risk that unvaccinated employees pose to their business and workplace safety. Some states and localities require at least some employers to have vaccine mandates, and some employers are requiring boosters.
On the other hand, the Kaiser Family Foundation reports that 14 states have laws or regulations that limit or prohibit employers from implementing vaccine mandates. The OSHA ETS will not preempt these state laws, so employers with geographically dispersed employees will likely need to implement different policies in different geographies.
The OSHA ETS would have required either a laboratory COVID-19 test or an observed rapid test as a potential alternative to the vaccination mandate. Absent this regulation, some employers that implement workplace testing will likely choose rapid antigen testing without observation or proctoring, which will lower the cost.
The CEO of United Airlines reported earlier this week that although 4% of United workers had contracted COVID-19 during the Omicron surge, there was not a single hospitalization or death from COVID-19 since its vaccine mandate went into effect. He reported that before the mandate there had been a death of a United employee every week.
Implications for employers:
Employer-sponsored health insurance plans will be required to cover up to eight over-the-counter home COVID-19 tests per member monthly. The federal government released requirements this week. Insurance will have to cover eight tests per member, per month without cost sharing. If the health plan has a preferred network of providers for this test where it is available with no out-of-pocket cost, reimbursement for tests purchased at other sites can be limited to $12 per test.
Research shows that the rapid antigen tests are highly accurate at diagnosing COVID-19 when the virus is at high enough levels that people are contagious. However, these tests are less sensitive in picking up early disease. People who have upper respiratory symptoms and a negative antigen test should continue to isolate and obtain a PCR test. If a PCR test is unavailable, they can check a second antigen test one or two days later. People with positive antigen tests who have COVID-19 symptoms should assume they have COVID-19 and isolate to avoid transmission to others. Their infection will only appear in public reporting if they have a confirmatory PCR test.
Implications for employers:
Other developed countries have made tests more readily available at a much lower cost per test than can be realized through this policy.
There were 1.4 million new reported cases of COVID-19 on January 10, and researchers at the University of Washington estimated that last week Omicron peaked with 6 million new cases a day. This makes sense – I personally know of more people who contracted COVID-19 in the last two weeks than throughout the rest of the pandemic. The difference is that all of my friends, colleagues or family members who got COVID-19 recently were fully vaccinated and most were boosted if eligible – and no one, to my knowledge, was sick enough to need medical care.
Nonetheless, hospitals remain at overcapacity in many states. The U.S. currently has about 150,000 in the hospital with COVID-19, and this could double over the coming weeks. Some hospitals still have patients with the Delta variant in their intensive care units, and even those patients who are admitted to the hospital for another reason and have no COVID-19 symptoms need to be isolated. In some instances, COVID-19 can lead to hospitalization of a patient with chronic diseases like lung disease or diabetes, even if COVID-19 is not the primary diagnosis at admission.
Wastewater indicators of infection rates are falling on both coasts, so it’s likely that overall infection rates will drop soon. Rates of infection might take longer to decline in areas with lower vaccination rates, and hospitalizations will continue to climb for approximately two weeks after the infection rates start to decrease, and then they will decline.
Implications for employers:
Public health authorities recommended cloth masks for the public at the beginning of the pandemic because supplies of high-quality masks were limited – even hospitals and medical offices had a hard time obtaining enough personal protective equipment.
We know more about how COVID-19 is transmitted now, and there are much better options than cloth masks. Here’s data from a simulation published in the Proceedings of the National Academy of Science last month. This research shows that if a person is contagious and they talk with someone for 20 minutes, the chances of transmission are about 75 times higher if both are wearing surgical masks compared to both wearing well-fitting, high-filtration masks. Note: The researchers are in Europe, and they used PP2 masks with an adjustable nosepiece, which is equivalent to the U.S. N95 masks.
Percentages based on mathematical modeling; sources: Proceedings of the National Academy of Science and Axios.
Here is my take on masks:
Implications for employers:
Children remain under-vaccinated in the U.S. Only 15% of children ages 5 to 11 and 53% of children ages 12 to17 have been fully vaccinated.
The evidence of effectiveness of vaccination for children is clear. Vaccines are associated with the following:
Some parents might worry about reports of a link between mRNA vaccines and heart inflammation (myocarditis), especially in teenage boys. The risk of heart inflammation from COVID-19 itself is substantially higher than the risk from the vaccination – and those who have had this adverse effect have all recovered. Heart inflammation from COVID-19 can cause permanent damage. Recent evidence shows the rate of vaccination-related heart inflammation among children ages 5 to 11 is very low (about 1 in 800,000).
Vaccinating kids keeps schools open, protects teachers and staff and keeps children from infecting more vulnerable family members including siblings under age 5 who are not yet eligible for vaccination.
Implications for employers: Continue to encourage employees to get their children vaccinated!
Jeff is an internal medicine physician and has led WTW’s clinical response to COVID-19 and other health-related topics. He has served in leadership roles in provider organizations and a health plan and is an Assistant Professor at Harvard Chan School of Public Health.
