Friday, September 10, 2021

The Vaccine "Mandate"

Yesterday, Thursday September 9, 2021, President Joe Biden announced a new plan to impose rules through the Department of Labor, which would require all businesses with employees of 100 or more employees to ensure that their employees are vaccinated or tested weekly for Covid-19.  Non-compliance could result in thousands of dollars of fines for the company.  His plan also required vaccinations for all employees of the federal government and all contractors doing business with the federal government, as well as requiring vaccination for all workers in health care settings that receive Medicare and Medicaid funding.

Biden's plan is his strongest measure taken so far to combat the Covid-19 pandemic, with an estimated impact of 80 million workers in private businesses, 2.5 million federal employees, and 17 million health care workers.  With our fully vaccinated rate at just above half (54%), this is a great step in closing the gap and helping end this pandemic. 

The push mirrors what several large corporations have already done.  Disney, Tyson Foods, United Airlines, and a host of other companies are requiring vaccines for their workforce.  Even Fox News has required its employees to provide vaccination status in order to obtain a FOX Clearpass (or vaccination passport or what we used to just call an immunization record) to work without social distancing.  The employees of FOX News must either be vaccinated or complete a daily screen.

There are a couple of important points to note - first, this is not an individual vaccination mandate, as some are portraying it.  The government is not requiring that you do anything.  Your large corporate employer may require something of you, but the federal government is not.  If you work for a small business, there is no direct impact to you.  Further, if you do not comply, there will not be a federal penalty that you would incur.  You may risk your job, but there is no government action that would come against you.

Second, there is no actual mandate.  The new rules do not require only vaccination and provide no other alternative.  The rules explicitly say vaccinate or test frequently.  Here testing is spelled out to be weekly.  With both vaccination and testing being free, this is a low burden.  If you choose not to get vaccinated, you can test weekly and still meet the requirements for your company.

Additionally, it is likely there will be companies that do not comply with these rules, and would rather incur the fines.  I wouldn't count on this, but it will happen.  Look already at the number of states where the governors predictably have vowed to oppose these rules.  Surprise, surprise, the governors that have fought against any kind of common sense Covid-19 precautions are the same ones that are opposing these new rules.  There will be companies that do the same, for the same reason - because it is politically expedient to do so.

Now, for why this matters.  We know that vaccinations are our best solution for getting out of this pandemic.  While it would be wonderful to get upwards of 90% of our adult population vaccinated, we know that will never happen.  There are those that cannot get vaccinated because of other health concerns, and there are those that will never get vaccinated because of conspiracy theories, misplaced religious exemptions, and pseudo-science.  

The alternative to vaccination is testing and contact tracing.  It's knowing who has the virus and where it travels.  It's quarantining those with the virus and eliminating contact.  

That's easier said than done.

Look at all the people who say we should just let it run its course, and for us to do the common sense thing of staying at home if we're sick.  That really is common sense, but how many of us really do it?  If we're feeling off for a day, how many of us actually take our temperature every day to know if we are running a fever or not?  How many of us say "it's just allergies," or "it's just my sinuses," or "it's just a little cough," but don't really know for certain?  How many of us are conditioned to go into work regardless of how we feel?  Or do not have an option to take off as sick, because we do not have sick days or substitutes, or the like?  Or how many of us know we are sick and stay home from work, but still run into the store because we have no one else to pickup medicine or supplies for us?

How many people would say, if I stayed home every time I felt a little sick, I would never go into work?

We're terrible germ factories and we're terrible at keeping them contained.

So, if we're not going to get vaccinated to protect ourselves and to lessen our viral load, the least we can do is are the social distancing measures.  Wear a mask, keep six feet apart, test frequently to know whether we have the virus or not, quarantine for the whole duration if we do have it.  Etc. 

You know, all the things half of us fought tooth and nail against since the beginning of the pandemic.

As noted above, we see the fighting on this already starting.  Despite these fights, there is precedent for this type of exercise of power.  Washington required the first mass troop inoculation for smallpoxThe Supreme Court in Jacobson v. Massachusetts affirmed the states authority to enforce compulsory vaccination laws.  While that case was decided in 1905, the Court recently affirmed this decision in 1922 (Zucht v. King), 1944, (Prince v. Massachusetts), and 1995 (Veronia School District 47J v. Acton).  Jacobson has even been relied on by circuit courts in the Covid-19 pandemic, including the Fifth Circuit.  While this is a novel exercise of power, it is expected to be upheld based on this precedent.

Perhaps we'll finally start making some headway.  Maybe we'll finally take this seriously and focus on getting past it.  

One could hope.

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