In considering the vaccination versus testing issue, it is worth reviewing a recent decision by the US Court of Appeals for the First Circuit affirming a district court decision denying a preliminary injunction of a rule mandating COVID-19 vaccinations for health care workers that was adopted by the state of Maine Center for Disease Control and Prevention (Maine CDC). DOES v. Mills, Docket No. 21-1826 (October 19, 2021). Pursuant to a recent amendment to a state statute, the rule allows medical exemptions but precludes religious or philosophical exemptions from the mandate, which the legislature found to be incompatible with the state’s interest in protecting the health of its citizens and health care workers. The court referenced and quoted a statement by the sponsor of that amendment:

The bill's sponsor explained that one key rationale for the change was to protect the immunocompromised “who will never achieve the immunities needed to protect them and [who] rely on their neighbors' vaccinations.”

While the decision technically only denied a preliminary injunction, in practical effect it appears to uphold the challenged regulation as a valid exercise of the state’s powers. In its decision, the court noted the following findings by Maine CDC in rejecting testing as an alternative to mandatory vaccination.

Maine CDC considered the following alternatives to mandatory vaccination: 

• Weekly or twice weekly testing. Maine CDC found that individuals infected with the delta variant can transmit the virus within twenty-four to thirty-six hours of exposure. It thus concluded that periodic testing would be ineffective.

• Daily testing. Maine CDC found that accurate polymerase chain reaction tests take twenty-four to seventy-two hours to provide results and that rapid antigen tests are too inaccurate and too hard to reliably secure. It thus concluded that daily testing would be ineffective.

• Vaccination exemptions for individuals previously infected with COVID-19. Maine CDC found that the scientific evidence was uncertain as to whether a previously infected individual would develop sufficient immunity to prevent transmission. It thus concluded that it could not justify such an exemption.

• Continued reliance on personal protective equipment. Maine CDC found that the use of personal protective equipment reduced, but did not eliminate, the possibility of spreading COVID-19 in healthcare facilities. It thus concluded that mandating personal protective equipment alone would be ineffective. 

For these stated reasons, Maine CDC concluded that none of its available alternatives to mandatory vaccination would allow it to protect its health care infrastructure and its residents.