In a party-line vote on Tuesday, six Republican lawmakers blocked the state Board of Health’s COVID-19 vaccine mandates for college students and state health and corrections workers from becoming permanent.
The tied 6-6 vote on the Legislative Commission, a panel of legislators charged with giving final approval to proposed regulations, means the mandate for students is no longer in effect, as the 120-day timeline for the emergency regulation approved in August expired over the weekend. The emergency regulation for health and corrections workers is set to expire in early January.
Tuesday’s vote was a show of political force for the state’s legislative Republicans, who are in the minority in the Legislature but not on the commission. They challenged the permanent nature of the regulations presented by both the state Department of Health and Human Services and the Nevada System of Higher Education (NSHE).
“I don't [think] permanent regulation is a wise thing to do now, but to look at the 120 days, make a substantial change in the emergency regulation that uses real words instead of 'prove immunity,' and just require vaccination if you want to do a mandate,” Sen. Joe Hardy (R-Boulder City) said.
Hardy distinguished between the two ways of requiring vaccination against COVID-19, noting that even though he is a believer in vaccines, they do not ensure immunity against the virus. Vaccines can limit the spread of COVID-19 and help prevent severe cases of the disease, but Hardy said there are no ways to guarantee someone has “proof of immunity” against COVID-19, which is the language used in the Board of Health’s regulation for college students.
Following the vote, the Board of Health is prevented by state law from approving another emergency regulation with the same vaccination requirements, so any vaccine mandate for the same groups would have to be enacted by the Legislature or through the typical permanent regulatory process that would require approval by the board and commission.
In a statement Tuesday evening, a spokesperson for the governor's office said the traditional promulgation process for such vaccine requirements — a lengthier and more involved than the one used for the emergency regulations — will continue. However, when that process may be completed or if the commission will approve the regulation at that later stage remains unclear.
Senate Majority Leader Nicole Cannizzaro (D-Las Vegas) pushed back on arguments against the mandates in a lengthy speech to the commission, noting her confidence in the process for religious and medical exemptions to the vaccine requirements and defending the efficacy of COVID-19 vaccines.
“To me, it is irresponsible of us not to approve this,” Cannizzaro said. “This is common sense public health policy that we are being asked to approve, and to do anything less than approve these regulations today, I think is simply pandering to a political message that is not … what we should owe to the people of the state of Nevada.”
Since the mandate for state workers was enacted in September, the vaccination among corrections workers has significantly increased, rising by 12 percentage points from Oct. 25 to Nov. 22 to a rate of 76 percent, weeks after an initial Nov. 1 deadline to receive vaccinations.
The requirement covered a broad spectrum of workers in the Department of Corrections and Department of Health and Human Services, specifically applying to employees or contractors of the state government who enter into an institution for vulnerable populations, such as a prison or hospital, as part of their work.
During the meeting, Hardy raised an issue with the mandate applying to corrections workers, but not to the populations they oversee.
“I think it's ironic that we are proposing a mandate for people who take care of prisoners — staff — and we don't have that same mandate proposed to take care of the very vulnerable people in prison,” Hardy said.
The Board of Health initially passed a student vaccine mandate under an emergency regulation in August, after both an internal NSHE task force and the governor’s office asked the board to explore such a mandate amid the early spread of the Delta variant and the then-looming fall semester.
The move essentially required all public college or university students enrolling in next spring’s in-person classes to be fully vaccinated against COVID, barring limited religious or medical exemptions.
The tying of a vaccination requirement to the enrollment process — as well as exemptions for students taking fully online course loads — has since created uncertainty over the actual number of vaccinated students.
Though they began in November, enrollment periods extend into mid-January, and it remains unclear how many students may yet enroll in in-person classes and, among them, how many of the more than 106,000 students enrolled at NSHE schools are vaccinated.
“We have over 70,000 students who have submitted their vaccine requirements,” Amy Pason, chair of Faculty Senate chairs, said in an interview after the vote. “But the concern is when you're asking us to go into classrooms — 100 students, 200 students — and you're not sure how many of those students in that room are vaccinated. That's where the risk goes up.”
As of mid-November, statistics shared by individual institutions showed a varying range of completed vaccinations and valid exemptions vis-a-vis the number of enrolled students, all the way from 82 percent at UNR to 62 percent at Nevada State College.
However, those numbers have likely increased in the weeks since, and the availability of online coursework — especially at community colleges — may complicate the degree to which in-person enrollment numbers may be used as a stand-in for total vaccination rates among all students.
A federal lawsuit was filed in November on behalf of a UNR student challenging the vaccine mandate; a judge denied the request for a temporary restraining order earlier this month.
Uncertainties over vaccination numbers have come amid increasing concerns over the possible impact of the highly transmissible Omicron variant on campus communities — both faculty and students — that have little appetite to return to a fully virtual learning experience.
“We don't know what the effect will be, but the fear among many is that without the full vaccination mandate and other safety precautions, that we will end up having to go back to remote operations again,” Kent Ervin, President of the Nevada Faculty Alliance, said in an interview on Tuesday. “And nobody wants to go back to online instruction.”
In a memo sent late Tuesday, NSHE Chancellor Melody Rose directed institutions to immediately lift any registration holds put in place because of a lack of covid vaccination, a move that appears to allow students to enroll in in-person courses regardless of vaccination status.
NSHE staff mandate
With the student mandate gone, another vaccine mandate for higher education employees may also come under increased scrutiny by the Board of Regents.
Through multiple public meetings discussing the specifics of that employee mandate, some regents — including a handful who voted against implementing any requirement at all — have linked the necessity of the employee requirement to the existence of the student counterpart.
At a meeting earlier this month, some regents again debated the usefulness of the mandate, and four of the 13 members ultimately voted against a procedural motion making the vaccine requirement a permanent policy change ahead of another formal review process expected sometime next year.
“Things are happening so fast, I just feel that this knee-jerk response is a bit much,” Regent Laura Perkins said at the time. “I think all of us said that things are changing so fast, they’re in a state of flux, so I would have real reservations about making a permanent solution to a temporary problem.”
Even if the employee mandate is removed, however, the vast majority of system employees have already proven their vaccination status — 94.3 percent as of Dec. 13 — or, in a small number of cases — 2.9 percent — have been granted a religious or medical exemption.
The remaining 2.9 percent of unvaccinated employees have already been given notices of termination, but those terminations will not take effect until Dec. 31. Before then, employees who receive their first shot will have their firings stayed, and even after, those who are fired will have a one-month grace period where they may have their employment reinstated if they get the vaccine.
It remains unclear if a minimum number of regents may attempt to call a special meeting of the board ahead of the Dec. 31 termination deadline.
A spokesperson for NSHE did not immediately reply to a request for comment. When asked about the possibility of a special meeting to consider the employee mandate, Regents Chair Pro Tempore Carol Del Carlo did not respond, and Vice Chair Pro Tempore Amy Carvalho deferred to an NSHE spokesperson.