Documenting America’s Path to Recovery #311: November 4, 2021

Welcome to Documenting America’s Path to Recovery. Today we look at several multistate lawsuits aimed at a federal vaccine mandate, changes in coronavirus restrictions in Hawaii, and other news since October 28.

We’ll also give the latest tracking on:

  • Lawsuits about state actions and policies 
  • Vaccine distribution
  • State-level mask requirements
  • COVID-19 emergency health orders
  • School mask requirements
  • State proof-of-vaccination requirements and policies

Since our last edition

What rules and restrictions are changing in each state? For a continually updated article, click here.

FEDERAL:

  • On Nov. 4, the Occupational Safety and Health Administration (OSHA) issued an emergency rule implementing President Joe Biden’s (D) proposed vaccine mandate on certain private business employees. The rule requires the roughly 80 million individuals who work for companies with 100 or more employees to receive a coronavirus vaccine or undergo weekly testing, effective Jan. 4, 2022.
  • On Nov. 2, the  U.S. Centers for Disease Control and Prevention (CDC) approved the Pfizer coronavirus vaccine for children ages 5-11 in a 14-0 panel vote. The Food and Drug Administration (FDA) approved emergency use authorization of the vaccine for that age group on Oct. 29.

Multi-state lawsuits: On Oct. 29, Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming sued President Biden (D), alleging he overstepped his authority when he issued an executive order requiring all federal contractors to get a COVID-19 vaccine. On the same day, Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia also sued Biden in response to his federal vaccine mandate. Florida and Texas filed individual lawsuits against Biden on Oct. 28 and 29, respectively.  

Alaska (divided government): On Nov. 2, Gov. Mike Dunleavy (R) issued an executive order preventing state agencies from using state funds and personnel to support or participate in a federal vaccine mandate for employers.

Colorado (Democratic trifecta): On Oct. 31, Gov. Jared Polis (D) issued an executive order authorizing the Colorado Department of Public Health and Environment to allow hospitals to transfer or redirect patients in response to the coronavirus.

Hawaii (Democratic trifecta): On Nov. 2, Gov. David Ige (D) issued an executive order lifting social distancing restrictions outdoors at bars and restaurants.

Indiana (Republican trifecta): On Nov. 1, Gov. Eric Holcomb (R) extended the statewide COVID-19 state of emergency through November. 

Missouri (Republican trifecta): On Oct. 28, Gov. Mike Parson (R) issued an executive order preventing state agencies from enforcing federal vaccination requirements.

North Carolina (divided government): On Nov. 1, Gov. Roy Cooper (D) vetoed House Bill 264. The bill, which passed the House 65-45 on Oct. 20 and the Senate 27-15 on Sept. 8, limits the governor’s emergency declarations to seven days unless the Council of State—an office composed of elected executive branch officers—extends them. The bill also requires the Legislature to pass a law extending any emergencies beyond 45 days.  

Tennessee (Republican trifecta): On Oct. 30, the Tennessee General Assembly passed Senate Bill 9014, which limits when public schools can require students and staff to wear masks. If the bill becomes law, school boards could require masks for up to 14 days if: 1) the state were under a COVID-19 state of emergency 2) county COVID-19 cases had reached 1,000 for every 100,000 people 3) and the school’s principal asked for a mask mandate. The bill now goes to Gov. Bill Lee (R) for his signature. 

Texas (Republican trifecta): On Oct. 28, Gov. Greg Abbott (R) extended the statewide COVID-19 disaster declaration through the end of the month. 

Lawsuits about state actions and policies

To date, Ballotpedia has tracked 1,940 lawsuits, in 50 states, dealing in some way with the COVID-19 outbreak. Court orders have been issued, or settlements have been reached, in 606 of those lawsuits. 

Since Oct. 28, we have added 10 lawsuits to our database. We have also tracked one additional court order and/or settlement. 

  • Does v. Mills: On Oct. 29, the U.S. Supreme Court voted 6-3 to deny some healthcare workers’ request to temporarily block Maine’s COVID-19 vaccine mandate for healthcare employees. The workers, who are seeking religious exemptions to the mandate, had asked the Court to block the mandate during the lawsuit. The plaintiffs alleged the mandate violates their First Amendment right to the free exercise of religion because of the alleged use of abortion-related materials in the development of the vaccines. The plaintiffs asked the Court to suspend enforcement of the mandate pending the Court’s decision on whether to hear the case in full on its merits. As a result of the Court’s denial, the mandate will remain in effect. 
    • Although the Court did not issue a formal opinion, Chief Justice John Roberts and Associate Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett formed the majority.
    • Barrett wrote a concurrence, in which she said the court was unlikely to take up the case on the merits. 
    • Associate Justice Neil Gorsuch, joined by Associate Justices Clarence Thomas and Samuel Alito, dissented. Gorsuch argued that because enforcement of the mandate may irreparably injure the plaintiffs before the case could be heard on its merits, injunctive relief should have been granted. 

Vaccine distribution

As of Nov. 3, the states with the highest vaccination rates as a percentage of total population (including children) were:

The states with the lowest rates were:

State mask requirements

Since Oct. 28, no changes to statewide mask requirements occurred. As of Nov. 4, masks were required in nine states with Democratic governors. Fourteen states with Democratic governors and all 27 states with Republican governors had no state-level mask requirements in effect.

COVID-19 emergency health orders

Governors and state agencies in all 50 states issued orders declaring active emergencies in response to the coronavirus pandemic. These orders allowed officials to access resources, like stockpiles of medical goods and equipment, unavailable to them during non-emergencies and temporarily waive or suspend certain rules and regulations. 

COVID-19 emergency orders have expired in 24 states. Emergency orders remain active in 26 states.

Since Oct. 28, no states have ended their statewide COVID-19 emergencies. 

School mask requirements

Since Oct. 28, no states changed their policies related to masks in schools.

State proof-of-vaccination requirements and policies

As COVID-19 vaccination rates have increased, state governments have enacted various rules around the use of proof-of-vaccination requirements in their states. In some cases, states have banned state or local governments from requiring that people show proof-of-vaccination. Other states have assisted in the creation of digital applications—sometimes known as vaccine passports—that allow people to prove their vaccination status and, in some cases, bypass COVID-19 restrictions.  

  • Twenty states have passed legislation or issued orders prohibiting proof-of-vaccination requirements at some or all levels of government. 
  • Five states have assisted in the creation of digital vaccination status applications or enacted orders or laws exempting vaccinated people from some restrictions.

Since Oct. 28, no states have enacted policies related to proof-of-vaccination requirements or digital vaccination status applications.

State employee and healthcare worker vaccine requirements

The Food and Drug Administration granted emergency use authorization to several COVID-19 vaccines in late 2020 and early 2021. Since then, many states have required state employees and healthcare workers to get vaccinated. In some cases, states have allowed workers to opt for regular COVID-19 testing in lieu of getting a vaccine. 

  • Fifteen states have issued a COVID-19 vaccine requirement for healthcare workers. 
  • Twenty states have issued a COVID-19 vaccine requirement for state employees.

Since Oct. 28, no states have enacted policies related to state employee or healthcare worker vaccine requirements.




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