Vaccine mandates are interfering with the provision of goods and services; causing shortages of experienced health care workers, of police and of firefighters; culling the ranks of the military; causing experienced intelligence officers to resign, be put on leave, or be fired; and exacerbating supply chain problems. As more mandates are imposed, more resignations, early retirements, and terminations will ensue. Predictably many otherwise served by the employees pushed out will find themselves helpless or with substandard care, resulting in preventable deaths and injuries. The rise in unemployment from the mandates will leave many able-bodied people out of work, harming them and their families, and retarding economic recovery or precipitating a recession.
There will not likely be a benefit in lives saved greater than lives lost and injuries incurred due to the mandates. There will likely be no causally provable improvement in health outcomes due to the mandates. Any incremental improvement possibly measurable from the mandates is overwhelmed by the many directly causal losses in life, health, and employment due to the labor and supply shortages brought on, at least in part, by the mandates. On balance, the mandates are poor public policy, as is mandatory vaccination and masking of children. They deprive Americans of their liberty and personal autonomy on a false, speculative promise of better health outcomes.
If the unvaccinated present a health risk at work, they likely present an even greater health risk at home, because the spread of the disease occurs most often where people tightly congregate, such as in homes. Moreover, breakthrough infections are appearing with greater frequency, albeit the overall incidence of COVID-19 is declining. It remains the case that almost all under the age of 65 survive COVID-19 and, when they do, they frequently have a fulsome immunity, equal to or greater than that attainable from vaccination. Those who are dying and will continue to die are largely outside of the work force and unaffected by the mandates (aged 65 and older).
Truth be told, almost all of us will become infected with COVID-19 over time and almost all will survive infection with strong immunity. It is likely in coming years that the virus will become less virulent. That too will aid the world in recovery. The vaccination mandates will not likely alter that course.
The anticipated OSHA rule (pending approval at OMB) will mandate all employees with few exceptions in companies that employ over 100 be vaccinated or tested weekly, or face termination. The moment the rule issues, it will face legal challenges nationwide that may well result in its invalidation. Under Section 6(c) of the OSH Act, the authority to promulgate the Emergency Temporary Standard that Biden has ordered, without opportunity for notice and comment rule making, is limited by proof not easily established and by a six-month duration. The government must prove employees are exposed to a grave COVID danger in the work place. Second, the government must prove the ETS necessary to protect employees from that grave danger.
Among the most instructive federal decisions, the Fifth Circuit’s Asbestos Info. Ass’n v. OSHA, described ETS as a “most drastic weapon,” an “extraordinary power” available only in “limited situations” and not entitled to judicial deference under the Administrative Procedure Act. OSHA has adopted an ETS nine times since 1971. Six of those nine standards were challenged in federal court, and only one survived judicial review.
The Courts give ETS a “hard look,” a higher degree of scrutiny than a rule adopted under the APA. In assessing whether a “grave danger” exists, the Courts reject speculative and uncertain evidence. The danger must be grave, i.e., life-threatening, under real world conditions and within the rule’s six-month duration. For those under 65 (the overwhelming majority of workers) the vast majority will survive COVID-19, a weighty fact against the ETS. Moreover, workers with natural immunity and those who work remotely from home, alone in a truck or car, or outside, pose no provable risk to anyone, let alone a grave risk. These are among many bases that prove the uncertainty of the risk.
Even if a grave risk were provably certain, OSHA cannot reasonably prove an ETS “necessary” to achieve the projected benefit of eliminating a grave COVID workplace risk. Employees are exposed to COVID-19 not just where they work but at home and in all other places they frequent (the grocery store, the gas station, restaurants, places of worship, theaters, airports, etc.). Most employees are under 65 and, so, will survive infection by overwhelming numbers. Thus, the ETS cannot be said to protect employees from COVID-19 exposures or reliably enable their survival. Indeed, unlike a hazardous chemical that originates in and is confined to the workplace, COVID-19 is ubiquitous making the ETS of dubious protective effect. Moreover, breakthrough infections are increasingly common. Finally, those who have natural immunity, work from home, are alone in a truck or car, or work outside present no provable workplace risk. In short, proof of ETS “necessity” is sorely lacking.
In government and in private employment, employees are also variously protected under the First Amendment and Title VII of the Civil Rights Act of 1964 against religious discrimination. Consequently, workers who object to vaccination on religious beliefs may not lawfully be terminated. In addition, those with medical objections based on pre-existing conditions may not be terminated consistent with Title I of the Americans with Disabilities Act.
As cases wend their way through the courts, ultimate determinations will be reached that define protections for those who dissent from the mandates. That arduous and costly process will take time. Before it reaches its zenith, the vaccine mandate wrecking balls will tear the country apart. A favorite of Democrats, mandatory vaccination may ultimately prove their political death knell and will likely be abolished in 2022 if there is a Republican sweep of the House and Senate and a loss of key state offices to Republicans. If that transformation takes place, repeals will stem injuries but will not alleviate the suffering experienced from the mandates until that time.
Jonathan W. Emord is a constitutional law attorney and author of The Authoritarians: Their Assault on Individual Liberty, the Constitution, and Free Enterprise from the 19th Century to the Present (2021).
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