Navigating the End of the COVID-19 Pandemic

Navigating the End of the Pandemic

With Governor Gavin Newsom’s formal termination of his emergency Executive Orders establishing the state’s COVID-19 public health measures, California is now once again open for business. Except for events with 5,000+ attendees, residents and visitors are no longer required to wear masks in public places nor follow prior CDC guidance regarding social distancing at least six feet from others. Given current vaccination and coronavirus infection rates, California’s public health experts have given the green light to reopening, providing a welcome sigh of relief to individuals and businesses across the state.

California joins many other states in terminating emergency coronavirus mitigation measures and issuing new, minimally restrictive public health guidance. But in recent months, as infection rates began to fall and vaccination rates began to rise, state officials all over the country have wrestled with the best approach to reopening their respective states. They’ve had to consider how and when to reopen businesses and schools in light of ever-shifting data. And they’ve had to grapple with thorny policy questions, such as whether businesses should be allowed or prevented from mandating employees receive a vaccination and whether public health restrictions should be revised to apply to those who show proof of vaccination, among other tricky issues.

The question of proving one’s vaccination status caught fire organically, with individuals proudly displaying their status one way or another online early in the year. But offline, the issue became a focal point of many public and political debates as to whether the vaccinated population should be allowed to forgo public health guidelines, such as masking, more quickly, and whether businesses could deny services to the unvaccinated. Some nations implemented a so-called vaccine passport to verify one’s vaccinated status, with full access to many services contingent on both being vaccinated and having one.

However, though the idea of vaccination proof, through a U.S. vaccine passport or another mechanism, had its supporters, not much relevant legislation was enacted in statehouses across the country. To implement such a mandate would present a logistical and security nightmare to private and public sector employers, perhaps even more so than the mask mandate itself did. It would also doubtlessly invite legal challenges from the business community and other affected stakeholders.

Further, while helping balance public health with the public’s desire to unmask, a proof-of-vaccination mandate could conceivably depress vaccination rates. Skeptical individuals might opt out, as they might otherwise primarily have been interested in vaccinations as a way to avoid wearing a mask. Additionally, the social stigmatization that could occur as a result between the vaccinated and the unvaccinated could harden the positions of those who might otherwise be persuaded to get the shot.

Perhaps nowhere has this question played out more publicly than in the state of Florida. Recently, its Governor, Ron DeSantis, signed an Executive Order prohibiting businesses and local governments from employee vaccine mandates, requiring proof of vaccination and limiting access based on vaccination status. This Executive Order’s language was subsequently integrated into a recent bill that DeSantis also signed. However, the language of each flies in the face of federal CDC guidance requiring cruise ships to carry vaccinated passengers – a policy already embedded in many cruise operators’ public safety plans. If cruise lines are not allowed to ask passengers for vaccination proof, they cannot adhere to their own safety plans or federal recommendations. The issue is now the subject of a lawsuit, with the industry effectively grounded until its disposition.

While Florida has generated other headlines for its willingness to break from federal public health guidance, there has been considerably less daylight between the CDC’s recommendations and California’s policies. There are still industries, notably the entertainment and tourism industries, in which some lingering pandemic public health policies still have an outsized impact on California businesses. But given that most emergency policies have been relaxed or rescinded, California’s business community as a whole is primed for a resurgence. Many pandemic-weary consumers are ready to resume their old habits, which can mean more revenue for companies ready for the opportunity.

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