COVID-19 mandate tussle: How did we get here?

LILO H. STAINTON, HEALTH CARE WRITER | FEBRUARY 2, 2022

NJ Spotlight News

Gov. Phil Murphy during one of his daily briefings on the pandemic

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Nurses are threatening to walk off the job over New Jersey’s new stronger COVID-19 vaccination mandate, according to social media posts. Elder advocates worry the requirement will exacerbate staff shortages at nursing homes. Republican lawmakers are up in arms, eager to curb Gov. Phil Murphy’s pandemic-related powers.

Public tolerance for the coronavirus crisis — and the governor’s response — appears to be declining along with new case numbers, down sevenfold in New Jersey since the start of the year. Much of the public ire seems to be focused on Murphy’s Jan. 19 order that enhanced an existing COVID-19 vaccination requirement for workers in health-care institutions and congregate-care settings in part by eliminating a testing option previously permitted.

But the enhanced vaccination mandate — which Murphy said was necessary to bring the state’s requirements in line with federal orders — is built on a legal foundation created to give New Jersey officials extra flexibility as the pandemic loomed nearly two years ago. It started with an executive order that enacted twin states of emergency, one related to general powers of state government and one focused on protecting public health, options that have long existed under New Jersey law.

That provided the underpinning for hundreds of state directives, guidance documents and regulatory waivers that would dictate where and how people could gather, provide new protections for struggling residents and change how the state oversaw almost everything from elections to hospitals to public schools.

Essentially, New Jersey’s active government response to the COVID-19 emergency began with Executive Order No. 103, legally speaking. Murphy signed this order, which anchors the state’s COVID-19 response, on March 9, 2020, just five days after New Jersey announced its first infections. Murphy had earlier signed Executive Order No. 102 to create a multi-agency coronavirus task force — a group Murphy has said was critical to planning the state’s response — but that was two months before the pandemic hit New Jersey.

In E.O. 103 Murphy declared both a state of emergency and a public health emergency — two distinct actions that depend on different statutes to provide state government additional flexibility and power — to protect public health and safety, government operations and state commerce, among other goals. The public health emergency, which allows the state to develop a specific vaccination plan, among many other responses, lasts only 30 days, requiring Murphy to renew it each month. The state of emergency provides broader powers and remains in place until the governor ends it.

Calm before a storm

As the crisis appeared to ebb, Murphy signed A-5820 on June 4, 2021, putting an end — for a while — to the state’s public health crisis. The measure also phased out a host of other pandemic-related orders from state agencies, including measures that gave hospitals more staffing flexibility. But it did not impact the larger state of emergency created under E.O. 103, which remained in effect to enable the state to continue vaccination and testing programs, among other responses.

But as summer continued, the more dangerous delta variant of the coronavirus took control and hospitalizations began to rise again. In August, Murphy mandated vaccination — or weekly testing — for workers in health-care institutions and congregate-living sites. Eventually this requirement would be extended to include state workers and all adults working in schools. He also mandated face coverings for everyone in school buildings, another controversial move that was set to end on Jan. 11, along with dozens of other restrictions. Just days after he was narrowly reelected as governor in November, Murphy suggested the requirement might be lifted even sooner.

That didn’t happen. In fact, the omicron variant exploded on New Jersey’s scene in December, sending COVID-19 cases spiking to a new record. Studies showed how booster shots were critical in preventing serious disease from omicron, although immunized individuals could still spread the new strain, and state officials begged people to get vaccinated and boosted in advance of the holidays. Murphy also crafted a proposal to extend for three months more than 120 pandemic-related programs, including the mask mandate.

Lawmakers hit the brakes

That plan depended on lawmakers, however, and when they declined to play along Murphy chose to act alone with another executive order. He said omicron gave him no choice but to reinstitute the public health emergency that had lapsed in June and he signed E.O. No. 280 just hours before his pre-taped State of the State speech was set to air on Jan. 11.

A week later, at an event to showcase a new COVID-19 testing center in South Jersey, Murphy announced he would beef up the vaccination requirement already in place for workers in hospitals, nursing homes and other health-care settings, as well as group homes of all kinds and state and county corrections facilities. The order, E.O. No. 283, eliminates testing as an option for these employees and requires they be fully vaccinated, with boosters on top when they become eligible for the follow-up shots.

The latest order, which builds on previous executive orders, notes that on Jan. 13 the U.S. Supreme Court upheld a federal regulation that required health-care workers to get COVID-19 shots, unless they receive an explicit medical or religious exemption. New Jersey’s mandate must align with this decision, Murphy said.

“The science tells us that it’s no longer good enough just to receive your primary series (of COVID-19 vaccines), as being boosted is necessary to protect yourself and others around you,” Murphy said in making the announcement. “We’re no longer going to look past those who continue to put their colleagues and, perhaps more importantly, those in their responsibility in danger of COVID. That stops now.”

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published this page in News and Politics 2022-02-02 02:59:56 -0800