Explores mandatory COVID-19 Vaccines for Workers.

 

Vaccinations dominate the news.  Simultaneously offering hope and fear, “vaccine-talk” and discussions about “mandates,” “passports,” “segregation,” “dissent,” and “peer pressure” intertwine to create confusion and dread.  Mandating the use of any product should not be done lightly.  Remember Obamacare?  Forcing workers to use a product to keep their jobs strikes some as unfair.  Should the boss force workers to eat broccoli if that is good for them?  What if the boss can “prove” eating broccoli makes better workers, reduces sick leave and improves performance?  No one forced Popeye to eat his spinach.  Can “the job” force workers to stop smoking or drinking alcohol?

Now we seem to be mandating a breakthrough technology used to combat a once-in-a-lifetime virus of unknown origin?  Proving their case:  The “I-Told-You-So-Crowd” points to headlines that the AstraZeneca and Johnson & Johnson vaccines may cause rare but fatal blood clots.  To those who succumb, rare provides little comfort.

Disclaimer

I got the COVID-19 vaccine as soon as I could.  I embraced the choice to reduce my risk and the risk I presented to others.  I decided to vaccinate.  And I also decided to still wear a mask in public, limit group settings, wash my hands frequently and keep my distance from others.  Others want to make their own choice.  They may remember other miraculous drugs which left damaged bodies and broken families.  So, I respect others may feel differently for medical, safety, religious, political, or personal reasons.

Mandating Vaccinations

Courts have long recognized the ability of the government to mandate vaccinations in some cases.  So held the United States Supreme Court in 1905.  See Jacobson v. Massachusetts.  Citing Jacobson and the “police power” of the government to act in the interest of public health and safety, many other courts agreed.  See e.g. Phillips v. New York (2015).

The Supreme Court which decided Jacobson in 1905 had not embraced a broad concept of liberty or privacy.  That would come much later in Griswold v. Connecticut (and dare we cite it, Roe v. Wade) where the Court found we were protected from arbitrary action because the “Bill of Rights [had] penumbras, formed by emanations,” much like Luke Skywalker’s “Force” in Star Wars.  An open question for me whether the Court would or could rule the same way today as it once did in 1905.  Our people have grown a great deal since those days.

Yoda might say, “A firmer sense of freedom we possess.”

A company though, even a big company, differs from the government.  Different rules apply.

The Federal law that applies to most businesses permits workers to refuse company-mandated medical procedures and tests in certain circumstances.  Workers objecting to such procedures and tests because of a sincerely held-religious belief or because of an underlying disability may insist on an “interactive process,” a discussion, as to alternatives.  If an alternative exists which would not cause the employer an “undue hardship,” then that alternative must be offered to the worker.  But if the worker presents a “direct threat” to others, if the mere presence of the worker can cause injury or death to a third-party, then the company may be able to require the procedure or test as a condition for keeping the job.  (Pause here to consider how one can prove a “direct threat” by having unvaccinated people in a workplace, given that for the last year the unvaccinated reported to work as emergency responders, construction workers, restaurant and grocery staff, sanitation workers and so on.)

In these topsy-turvy times, the Trump Administration’s Equal Employment Opportunity Commission and the progressive states of New Jersey and California agreed that the boss can force workers to get vaccinated.  Strange bedfellows.  Other states are at least considering legislation to either mandate vaccine or ban vaccine mandates.

Emergency Use Authorization

Many say Federal law does not protect workers who simply do not wish to become experimental lab rats.  No federal law gives workers the power to say “no thank you” due to personal fears or objections, even if justified.

That does not seem right, does it?  Can a “boss” brew-up a cocktail in the basement and force her employees to consume it to stay employed?

We now know that times changed beneath our feet.  In the span of a mere fifteen months, down became up and “rights” became “wrongs.”  The right to refuse to wear a mask became a “wrong” to the rest of us.  The right to travel freely became wrong not to quarantine after doing so.  The right to visit the local pub became wrong when government ordered it to close.

Worth remembering, and perhaps key to answering whether the boss can require workers get shots, the Food and Drug Administration (FDA) approved the current COVID-19 vaccines under an Emergency Use Authorization (EUA).  EUAs direct the Secretary of the FDA to require individuals receiving the product be informed of

the option to accept or refuse administration of the product [and], the consequences, if any, of refusing . . . .

21 U.S.C. §360bbb-3(e)(A)(ii)(III).  The Pfizer EUA requires those receiving the vaccine to be given a “Vaccination Fact Sheet,” which states: “It is your choice to receive the Pfizer-BioNTech COVID-19 Vaccine.”  The Vaccination Fact Sheet does not tell workers unemployment will be one “consequence” to refusing the vaccine.  Strange oversight – perhaps.

One case has already been filed to test the right of the boss to require COVID-19 vaccinations.  Legaretta v. Macias, No. 21-cv-179 MV/GBW, 2021 U.S. Dist. LEXIS 44474, 2021 WL 833390 (D.N.M. Mar. 4, 2021).

I expect more.

Hat TipsBill of Health Blog (Nov. 30, 2020 Blog Post); Christine A. Samsel & Peter Goodice, of Brownstein Hyatt Ferber Schreck LLP (Mar. 3, 2021 Blog and Mar. 28, 2021); Alison Kalinski of Liebert Cassidy Whitmore  (March 16, 2021 Post)

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