It’s still unclear if Orange County businesses and residents will fall under a federal COVID-19 vaccine mandate as a new variant — Omicron — is raising concerns from public health experts.

In early September, President Joe Biden announced employers who have at least 100 workers will have to either verify their employees are fully vaccinated or offer a weekly testing regiment. 

Efforts to roll the mandate out by January have stalled out following a wave of federal lawsuits against the U.S. Department of Labor’s division of Occupational Safety and Health Administration, which was in charge of putting together workplace guidance for the mandate.

“The court ordered that OSHA ‘take no steps to implement or enforce’ the [mandate] ‘until further court order.’ The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over [mandate] challenges and [Department of Labor] has filed a motion to lift the stay,” reads a statement on the department’s website.

Miichele Goodwin, a UC Irvine chancellor’s professor of law, said there’s legal precedent for vaccine, mask and quarantine mandates. 

“It’s been well established in law … that includes being able to impose vaccination requirements, being able to impose quarantine — quarantine restrictions date back centuries actually, even before the United States was the United States,” Goodwin said. 

Goodwin, founding director of UCI’s Center for Biotechnology and Global Health Policy, said the government is able to issue such mandates as long as it’s in the interest of public health.  

“These government mandates with regard to employers, it would seem to fit in this very long history where there has been consistent precedent,” Goodwin said. “That would include masks and vaccination, it would include quarantining. All of that has been an unquestionable part of American jurisprudence.” 

She said the legality of such mandates stretch back more than a century ago.

“The state may impose vaccination requirements in order to prevent mass scale death,” Goodwin said, noting a cornerstone public health case from the Supreme Court in 1905.

In that case, Jacobson v Massachusetts, the justices ruled the government is allowed to impose vaccine mandates to protect public health.

“The Supreme Court — 20 years after that decision — again said vaccine requirements are legal and legally binding — such as the state can say the children have to be vaccinated before children receive a public education,” Goodwin said. 

But, Goodwin cautioned, the government can only narrowly apply those types of mandates to a public health crisis to prevent massive waves of death, like vaccines for smallpox in the early 1900s.

“When you think about quarantining and also receiving a vaccination, they are infringements on civil liberties. It’s not as if our civil liberties are absolute. But the government must not exceed its authority when it comes to protecting health and public safety,” she said.

While the proposed vaccine mandate’s future remains uncertain in federal courts, state officials are requiring indoor events with more than 1,000 people to demand proof of inoculation or a negative test within the last 48 hours to get in.

That means people will have to show they’re fully vaccinated or tested negative before getting into large indoor venues like the Honda Center and the House of Blues.

State public health officials recommend, but not mandate, the same types of measures for outdoor events with 10,000 or more people. 

A month-long, statewide universal indoor mask mandate was reestablished Dec. 15 because state public health officials have seen a statewide increase in virus hospitalizations and fear an Omicron-fueled surge. The mandate is slated to expire Jan. 15.

[Read: Mask Mandate Returns to Orange County Wednesday]

Unlike Los Angeles County, OC has no vaccine verification mandates on businesses.

It’s producing a splintered approach among the business community, said Lucy Dunn, president and CEO of the Orange County Business Council. 

“There’s no across the board,” Dunn said in a phone interview before the indoor mask mandate was reinstated. “Some businesses are requiring their employees to be vaccinated or tested or work hybrid. Others are saying wear a mask if you’re not vaccinated.” 

Dunn said verifying vaccines or a negative test is easier for certain businesses, like office environments.

“The public-facing businesses, it’s hard to do that,” she said. “Most folks are trying to do the right thing and be careful.” 

She also noted the pandemic has overhauled work environments.

“No one’s going back to 2019 — no one’s doing that,” Dunn said.

In a follow up text message, Dunn said the business council took an informal poll of the business community on how people are handling health protocols.

“No one really is doing anything different other than the leaders in the healthcare industry are masking up in public settings. But everyone is practicing safe health protocols,” she said, encouraging residents to get fully vaccinated or their booster shots. 

Nearly 67% of Orange County’s roughly 3.2 million residents have been fully vaccinated, according to the county Health Care Agency.

County of Orange CEO Frank Kim previously told Voice of OC that county officials plan on following the federal vaccine mandate once it’s rolled out. 

“Obviously we are an employer that’s greater than 100. So at the bare minimum we have to develop a plan for weekly testing for those individual employees who are not vaccinated. I think the challenge is we don’t know the effective date,” Kim said in a September news briefing. 

Some cities aren’t waiting for a federal vaccine and testing mandate.

The city of Stanton, which has less than 100 employees, created its own vaccine and testing mandate in September, joining Santa Ana, Irvine and Laguna Beach.

In Santa Ana, police officers have some of the lowest vaccination rates among city employees — a trend that’s been seen in police departments throughout the country and at the county level with the OC Sheriff’s Department. 

Richard Carpiano, a public health scientist and sociologist at UC Riverside, said the low vaccination rates for many police agencies starts with resistance at top levels. 

“When you start to see patterns like this you have to start thinking systematically,” Carpiano said in a phone interview. “When we think about county sheriff’s for example, they have not been very supportive about the vaccine, or at best very tepid about it.” 

He also said law enforcement officers have a higher risk of catching the virus compared to other professions. 

“Their chance to get COVID is quite high, much higher than somebody who works from home,” Carpiano said. “We know one of the major killers of police officers during COVID is COVID.” 

Meanwhile, OC’s Latino community still faces the biggest vaccine gap compared to other groups.

According to state data, Latinos make up over 35% of Orange County’s vaccine-eligible residents.

Yet only 22% have been vaccinated.

It’s a persisting gap that’s been around since the shots were first being doled out at the beginning of this year.

But leaders at local health clinics and community organizations say they’re making progress to close the gap — especially through school vaccination sites throughout Anaheim and Santa Ana.

Goodwin, the UCI law professor, said everything from masks to vaccines has become politicized during the pandemic. 

“Given how politicized vaccination has become, given how politicized mask wearing has become. I believe 5 years ago we wouldn’t have seen the debates … imagine people saying I demand that my child not get a polio vaccine,” Goodwin said.

A September Gallup poll shows 58% of the country supports mandating vaccines for businesses with 100 or more workers.

Yet there’s a stark difference when broken down by political party lines — 93% of Democrats surveyed support the measure, while only 17% of Republicans said they did. 

Carpiano, who researches vaccine hesitancy and resistance, also said he’s seen an increasing politicization of the pandemic, noting many social media personalities and various anti-vaccine groups that have surfaced over the past year and a half. 

“It’s sort of this political poisoning of the well of science. I don’t have words for it, other than it’s a tragedy. This literal open abrasiveness for individuals — I’ll just say it — to spout bullshit about medical and scientific facts is irresponsible,” he said. 

Spencer Custodio is a Voice of OC staff reporter. You can reach him at scustodio@voiceofoc.org. Follow him on Twitter @SpencerCustodio.

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