UPDATES (July 27, 2021): On Monday, July 26, Bloomberg Law reported on a July 6 U.S. Department of Justice memo that addressed whether public or private entities may require COVID-19 vaccinations while they are under emergency use authorizations. The memo concluded that the federal Food, Drug, and Cosmetics Act does not prohibit such requirements. Also on Monday, the U.S. Department of Veterans’ Affairs announced that VA health care personnel would be required to receive COVID-19 vaccinations. On Tuesday, July 27, the CDC issued updated recommendations for mask use by fully vaccinated people. The new guidance recommends that fully vaccinated people wear face masks in public indoor settings in areas experiencing substantial or high transmission, a designation that presently includes a majority of North Carolina’s counties. The guidance also recommends universal indoor masking for teachers, staff, students, and visitors to schools, regardless of the individual’s vaccination status.
July has been a very busy month in COVID-19 law and policy, with activity on issues ranging from mask requirements, to new guidance for K-12 schools, to vaccine mandates. This post rounds up the latest information and resources, beginning with a snapshot of where we’ve been and where we are now with COVID-19 in North Carolina.
North Carolina’s Pandemic Experience to Date
It’s been over 16 months since North Carolina officials announced the state’s first confirmed COVID-19 case. The state experienced surges of confirmed cases in late summer and winter, followed by a steep decline in the spring of 2021 as vaccines became widely available for adults and teens. In recent weeks the daily case count has begun to climb again, likely because of the spread of the more-contagious delta variant of the virus. On Friday, July 23, North Carolina’s COVID-19 dashboard reported a cumulative total of more than one million confirmed cases and more than 13,500 deaths since March 2020.
By mid-July 2021, the vast majority of COVID-19 hospitalizations and deaths in the United States were occurring in unvaccinated persons, prompting CDC Director Dr. Rochelle Walensky to say that the disease is “becoming a pandemic of the unvaccinated” in this country. As of July 23, the state’s dashboard reported that 54% of North Carolinians age 12 and up had been fully vaccinated against COVID-19 and 57% were partially vaccinated. However, vaccination rates vary greatly by county and by age group. Further, children under age 12 are not yet eligible for vaccination under the FDA’s emergency use authorizations.
Statewide face mask requirements for most indoor public places were first imposed in North Carolina in June 2020. In mid-May 2021, many of the requirements were lifted, following new guidance from the CDC stating that vaccinated individuals did not need to wear masks in most public places. The remaining statewide face mask requirements are in Executive Order 220.
On July 21, Governor Roy Cooper announced in a press conference that EO 220 will expire on July 30 as scheduled. The state of emergency will continue, but state-imposed mask mandates will end with the expiration of the order. A CDC order requiring masks on public transportation will remain in effect. In addition, face masks may still be required by others, such as health care facilities, private businesses, or local governments.
During the July 21 press conference, Governor Cooper and Health & Human Services Secretary Mandy Cohen announced an updated version of the state’s StrongSchoolsNC Toolkit, which contains public health guidance for the state’s K-12 schools during COVID-19. The updated guidance prioritizes the return to in-person instruction for the fall of 2019 and makes recommendations based on the guidance of both the CDC and the American Academy of Pediatrics.
The updated guidance recommends that all schools require children and staff in schools serving grades K-8 to wear face masks while indoors, regardless of whether the individual child or staff member has been vaccinated, because most children in those grades are not yet eligible to be vaccinated and therefore remain vulnerable to the virus. For grades 9-12, the guidance calls upon schools to require unvaccinated persons to wear masks while indoors. In addition, all passengers and staff on all K-12 school transportation (buses, vans, etc.) must wear masks in accordance with CDC’s order requiring masks for persons on public conveyances.
Whether or when COVID-19 vaccination should be mandated for any part of the population has been a controversial policy issue in the United States. Nevertheless, vaccine mandates are beginning to be imposed in some settings, and courts are beginning to uphold them. This portion of the post addresses recent developments in vaccine mandates for two groups: health care employees, and students or employees of colleges and universities.
North Carolina Health Care Employees
There are very few vaccination requirements for health care workers that are imposed by North Carolina law—just a couple of state statutes that address annual flu vaccines for employees of nursing homes (G.S. 131E-113) and adult care homes (G.S. 131D-9). Rather, most vaccination requirements for this group are imposed by health care employers.
On July 22, the North Carolina Healthcare Association (NCHA) issued a statement supporting COVID-19 vaccination requirements for health care employees. The statement was sent to all of NCHA’s 130 member health systems and hospitals, and said that the association “strongly supports hospital and health system policies that require all hospital employees and clinical team members to be vaccinated against COVID-19.” NCHA also announced that the following North Carolina hospitals and health care systems will be requiring COVID-19 vaccinations for health care workers: Atrium Health, Cone Health, Duke University Health System, Novant Health, Wake Forest Baptist Health, and the following UNC Health hospitals: UNC Medical Center, UNC Rex, UNC Johnston, UNC Chatham, UNC Rockingham, and UNC Southeastern.
The association’s action comes a little over a month after a federal district court in Texas dismissed a lawsuit filed by 117 employees challenging Houston Methodist Hospital’s COVID-19 vaccination requirement. Bridges v. Houston Methodist Hosp., No. 4:21-cv-01774 (S.D. Tex. June 12, 2021).
For further information about employer-imposed COVID-19 vaccination requirements, see my colleague Diane Juffras’ blog post on the subject.
Colleges and Universities
According to the Chronicle of Higher Education, about 600 US colleges and universities are requiring vaccination against COVID-19 for the fall semester for students attending on-campus classes, and/or for faculty and staff. While most of the colleges and universities with such requirements are private institutions, several public universities have announced COVID-19 vaccination requirements, including the University of Virginia, the University of Maryland, Indiana University, and all of the campuses in the University of California and California State systems.
Indiana University’s mandate was challenged by several students, most of whom qualified for a medical or religious exemption to the vaccine requirement but did not wish to comply with masking and other requirements that the University plans to implement for unvaccinated students. On July 18, the students lost their bid for a preliminary injunction in federal district court. Among other things, the students argued that they should not be subjected to vaccines that are under FDA emergency use authorization, that vaccinations could not be required by the university when they had not been required by any other Indiana government agency, that vaccinations could not be required in a state that had adopted legislation prohibiting so-called “vaccine passports,” and that vaccination mandates by a public university violated their constitutional rights to due process of law. In a 101-page decision, Judge Damon Leichty considered all of these arguments, concluded that the students were unlikely to succeed on the merits, and denied the injunction. Klaassen v. Trustees of Indiana University, No. 1:21-CV 238 DRL (N.D. Ind. July 18, 2021).
The CDC’s guidance for institutions of higher education (IHEs) does not presently recommend vaccine mandates, but it urges IHEs to offer and promote COVID-19 vaccination for students, faculty, and staff. It also provides different infection control guidelines for IHEs that have fully vaccinated populations versus those whose population is partially vaccinated or has unknown vaccination status. For example, it continues to advise promotion and support of physical distancing measures on campuses that are not fully immunized. The American College Health Association has recommended COVID-19 vaccination requirements for on-campus students if state law and available resources permit it.
In North Carolina, several private colleges and universities have announced COVID-19 vaccination requirements for their students and/or employees, but as of late April the public UNC System had declined to require vaccination, citing legal and policy considerations. The North Carolina colleges and universities that have established COVID-19 vaccination requirements to date are Bennett College, Brevard College, Duke University, Elon University, Johnson C. Smith University, Lees-McRae College, Lenoir-Rhyne University, Queens University of Charlotte, Salem College, Shaw University, Union Presbyterian Seminary at Charlotte, Wake Forest University, and Warren Wilson College.
Conclusion: Today’s “New Normal”
North Carolinians have endured an extraordinarily difficult 17 months and are no doubt pleased to see many aspects of life beginning to return to normal. At the same time, a new, more contagious version of the virus is circulating and case counts are ticking up, reminding us that the pandemic is not yet completely behind us.
While face masks are no longer uniformly required in all indoor settings, they are still recommended in all indoor places for those who are unvaccinated and they may be required of both vaccinated and unvaccinated people in other settings. For example, here at UNC-Chapel Hill, our community standards require face masks in our classrooms and at other indoor gatherings, regardless of an individual’s vaccination status. In addition, universal masking of all students and staff is the standard for K-8 schools in North Carolina’s public health guidance.
Public health authorities uniformly recommend COVID-19 vaccinations for those who are eligible to receive them. At present, all North Carolinians age 12 and over are eligible for free COVID-19 vaccinations. Information about the vaccines and how to obtain them is available at YourSpotYourShot.nc.gov. The site includes information about how to obtain a free ride to a vaccination site, as well as how eligible homebound persons may receive one at home.
Throughout the pandemic, public health guidance and emergency requirements have adapted and changed as understanding of the virus has developed, the course of disease spread has changed, and vaccines have become available. This post summarizes where North Carolina is today on a few issues, but further changes are inevitable as the pandemic continues to evolve and, let’s hope, is ultimately left behind us.