Covid National Emergency Ends
What does that actually mean?
There was a lot of excitement yesterday about Biden signing the bill to end the Covid national emergency. But practically speaking, this means very little to most Americans. There are many different elements of our federal Covid response, and the national emergency was just one small part.
What does the bill actually DO?
Biden signed H.J.Res. 7, which ended the national emergency for Covid. Both the text of the bill, and the corresponding press release from the White House are short and sweet. The White House recently said Biden “strongly opposes HJ Res 7,” but that he would sign the bill if it passed. It passed with bipartisan support in both the House.
The national emergency allowed for an extension of COBRA deadlines for people who are out of work. These deadlines were extended during the “outbreak period,” which will end 60 days after the end of the national emergency.
The national emergency allowed for a federal mortgage forbearance program, which is scheduled to end May 31.
The DHS rules for vaccine mandates for foreign travelers at land border crossings from Canada and Mexico rely on the national emergency as their legal basis, so theoretically they will end with the national emergency. But there has been no official actions to lift those rules, and I suspect the White House expects this vaccine mandate to continue for at least another month. (See section on travel vaccine mandates further down for more details.)
What does the bill NOT do?
This does NOT end the public health emergency, which the White House has said will end on May 11. The public health emergency is responsible for many elements of the Covid response, including 20% additional Medicare payments for hospital patients with Covid, the Title 42 policy, payment for Covid testing, and various other policies.
This does NOT end vaccine mandates for foreign visitors arriving via air. As I mentioned, it may end the vaccine mandate for foreign travelers at land border crossings from Canada and Mexico. (See section on travel vaccine mandates below for more details.)
This does NOT end vaccine mandates for health care workers. Those are scheduled to remain in place through November 2024.
This does NOT end the emergency declaration under Section 564 of the Federal Food, Drug, and Cosmetic (FD&C) Act, which authorizes Emergency Use Authorization for vaccines and treatments.
This does NOT end the PREP Act, which provides liability protection for manufactures of Covid vaccines and treatments until October 2024. See section on the PREP Act below.
This does NOT end the FEMA funds for Covid funeral expenses. That program is separate from the national emergency and the public health emergency, and will continue through September 2025.
This does NOT end mask mandates on federal property during high Covid transmission. That is the result of Biden’s Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing.
It does not end the White House Covid-19 Task Force. The White House indicated that the Covid-19 Task Force would disband in May, along with the end of the Public Health emergency.
More Details about Travel Vaccine Mandates
On October 25, 2021, Biden issued an executive order, dropping the requirement for testing for international travelers and replacing it with a vaccine requirement for foreign visitors arriving via air. You can read the order here: A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic.
Shortly after Biden issued this order, the CDC and TSA issued rules to implement this requirement for incoming air travelers. DHS implemented a similar rule for foreign visitors coming in via land and ferry border crossings from Canada and Mexico (but not the Bahamas).
The TSA directive was initially set to expire after one year (in Nov. 2022), but it has been extended 3 times — in Nov. 2022, Jan. 2023, and again in April 2023. The latest update extended it for only one month, from April 11 to May 11, 2023. While this is not a guarantee that it will expire on May 11 (it could certainly be extended again), it is a hopeful sign that Biden has indicated to the TSA that he will cancel his order along with the public health emergency on May 11. If he doesn’t, TSA will be required to extend this directive again.
On the other hand, the DHS rule for land and ferry travelers from Canada and Mexico is on a more tenuous basis, as its legal authority relies on the national emergency, which has now ended. However, the DHS ruling also refers to Biden’s Presidential Proclamation, and says “DHS anticipates lifting the requirements imposed under this notification no later than when Presidential Proclamation 10294 is revoked.” More on this here and here.
The United States is one of the last remaining countries to enforce a vaccine mandate on foreign travelers. The top 5 largest countries to ban unvaccinated foreign travelers are the US, Indonesia, Pakistan, Myanmar, and Libya. Not a great list to be on.
For more on the travel vaccine mandate, see these articles by attorney Gwendolyn Kull: Tragically, US Travel Restrictions Remain in Place (3/31/23) and Visit the US by Sea or Land If Not by Air (4/6/23).
More Details about PREP Act Liability Protections
In the US, most vaccines are covered by the National Vaccine Injury Compensation Program (VICP). This was created by the National Childhood Vaccine Injury Act of 1986 to shield manufacturers from liability, so that they would not be discouraged from producing vaccines for fear of lawsuits. The program is funded by a $.75 excise tax on each dose of vaccines recommended for routine administration to children or pregnant women. The vaccines must be commercially sold and taxed in order to qualify for this program and must be recommended by the CDC for routine administration to children or pregnant women.
Currently, the manufacturers of Covid-19 vaccines are protected from liability by the PREP Act until October 2024, which provides coverage for vaccine injury through the Countermeasures Injury Compensation Program (CICP), at least in theory. Few, if any claims have been paid out through that program, and it is more limited than the VICP in terms of what it covers. The liability protection offered by the PREP Act will continue until October 2024, regardless of any of the following scenarios:
It does NOT matter if the vaccines are under Emergency Use Authorization (EUA) or fully licensed (approved) by the FDA.
It does NOT matter if any public health or national state of emergency declarations are still in effect.
It does NOT matter if the vaccines are commercially sold or provided by the federal government for free.
It does NOT matter if the vaccines are on the ACIP schedule.
I hope this helps clear up some of the confusion. If you have are additional questions, let me know and I’ll see if I can find out the details and update this article.