Coronavirus

May Employers and Universities Require COVID-19 Vaccinations?

At present, there is nothing in federal law that should preclude vaccination requirements for returns to workplaces and campuses.

|

May employers and universities require employees and students to obtain COVID-19 vaccinations before they return to workplaces and campuses? Back in February, attorney Aaron Siri argued that such requirements would be illegal because current vaccines only have emergency use authorizations. Siri wrote in Statnews' First Opinion:

The same section of the Federal Food, Drug, and Cosmetic Act that authorizes the FDA to grant emergency use authorization also requires the secretary of Health and Human Services to "ensure that individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product."

Likewise, the FDA's guidance on emergency use authorization of medical products requires the FDA to "ensure that recipients are informed to the extent practicable given the applicable circumstances … That they have the option to accept or refuse the EUA product …" . . .

When the FDA grants emergency use authorization for a vaccine, many questions about the product cannot be answered. Given the open questions, when Congress granted the authority to issue EUAs, it chose to require that every individual should be allowed to decide for himself or herself whether or not to receive an EUA product. The FDA and CDC apparently consider this fundamental requirement of choice important enough that even during the height of the Covid-19 pandemic they reinforced that policy decision when issuing their guidance related to the Covid-19 vaccines.

Whatever one makes of this argument as a policy matter, I find Siri's arguments wholly unconvincing as a legal matter, and I am not alone.

Dorit R. Reiss, I. Glenn Cohen, and Carmel Shachar have an essay in Statnews' First Opinion this morning explaining why Siri's argument is wrong.

[T]he EUA statute says nothing directed at employers or universities. Instead, it addresses the actions of federal officials, such as the HHS secretary and the president — not private actors. Private employees are generally "at will," meaning they can be terminated for any reason that is not explicitly illegal. Those arguing that the EUA statute prohibits mandates by at-will employers are claiming that this federal law is changing existing state employment law on the topic by mere implication. They are reading in a broad prohibition covering all employers and universities in the U.S. that is not, in fact, in the statute. Such broad preemption would require, at a minimum, clearer language.

This is an important point. The argument the private institutions may not require vaccinations of their employees or others is based upon reading the relevant statute extremely broadly to give it a sweeping preemptive effect. Such statutory interpretations are generally disfavored, and for good reason.

The authors also note that this legal argument sweeps quite broadly, and would suggest that universities and employers that require testing for those on-site (as my employer does) are also violating federal law.

During the pandemic, employers and universities have already required Covid-19 tests, many of which are being provided under emergency use authorization, for their in-person employees and returning students. If mandating products like tests under an EUA is unlawful, then every employer or university requiring the use of those tests has been flagrantly violating the law.

Before the pandemic, the general position of the relevant federal agencies, such as the Food and Drug Administration and the Centers for Disease Control and Prevention, was that vaccines provided under emergency use authorization cannot be mandated. But that guidance was not binding. When confronted with pandemic realities, the federal government took the position that "[w]hether an employer may require or mandate Covid-19 vaccination is a matter of state or other applicable law." Legally, there is nothing to prevent such a reasonable position shift.

As the authors note, the policy question of whether a given employer or university should mandate vaccinations may be a more complex question, and there may well be jurisdictions in which such a requirement might be legally questionable, but federal law does not bar the adoption of such policies.

At my university, weekly testing has been required for everyone on campus since last fall. This policy is designed to help the university ensure a safe learning and working environment. A mandatory vaccination requirement, with a reasonable exemption for those with legitimate health or religious objections, would serve a similar purpose. There may be reasonable counter-arguments to the adoption of such a policy, but "federal law prohibits it" is not among them.

NEXT: Some Rhetoric from the Rotenberg v. Politico Complaint

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. My employer currently requires me to wear a mask while I’m not isolated in my cubical. (Pretty silly since I’ve already had Covid, and there’s no medical reason for wearing it.)

    Rather than just ordering us to get the shots, you’d think they could resort to a carrot: “Once you’ve been vaccine, you can ignore our mask wearing policy! Or, of course, you can skip the vaccine and just keep wearing a mask indefinitely. Your call.”

    1. Is it proven that you can’t get Covid twice? Is it proven that if vaccinated you can’t transmit?

      1. No. I also think that the continuation of mask requirements has a lot to do with presenting a public show that we are in this together. Even when vaccinated, the public message sent by continuing to use the mask supports those waiting for the vaccine. There will be a time to drop mask requirements but we should let that come naturally and not try to force the issue too early. Even if a mask does little good it does less harm.

        1. IOW, mask wearing by the recovered/vaccinated is more in the nature of compelled speech, than it is a medical precaution.

          1. Again, you (yes, Brett I’m looking at you) can still be a spreader or superspreader.

            1. Spare us the fantasies, will you?

              1. Sorry Brett, you are the one living in a fool’s paradise protected by taking four biology courses.
                Of course you might be a superspreader, and you would never know it.
                Is the chance of that small? Yes.
                But if so, your be 10,000 more dangerous than the average infected person.

        2. Another practical reason to require mask wearing even by those that have been vaccinated or previously infected w/SARS-CoV-2 is that it eliminates the “policing” needed by the employer or those controlling a facility or even customers and colleagues to determine who had/has not been vaccinated or previously infected and therefore need not wear a mask.

          Even if we had “Vaccination Passports” (and, perhaps, “Been Infected Passports”) that were rock solid secure from forging, just checking them would be a problem.

          Would a non-mask wearer, such as a student walking by another student on campus, be required to show anyone who requested it their “passport”? Would professors/proctors be allowed/required to keep track of who could, and who could not, take off their masks during lecture? What about in a public park or sidewalk? Such requirements, esp. in truly public places, would lead to many confrontations that would sap the newly defunded police departments’ resources.

          1. I’m pointing out the practical reason to exempt the vaccinated or previously infected: It motivates people to get vaccinated.

          2. Another practical reason to require mask wearing even by those that have been vaccinated or previously infected w/SARS-CoV-2 is that it eliminates the “policing” needed by the employer or those controlling a facility or even customers and colleagues to determine who had/has not been vaccinated or previously infected and therefore need not wear a mask.

            It’s interesting how folks are getting more and more nonchalant about the idea that masks are never going away.

            To wit, there will never be a time when the above statement will be untrue (setting aside the discussion of what is “needed” for the moment for the sake of argument). Particularly when the goalposts next get moved to “who has/has not been vaccinated or previously infected in the past __ days.”

            1. Pretty much. I’ve actually seen some people in positions of authority come out and say it: Get used to these precautions, they don’t EVER mean to lift them, and let people return to normal life.

            2. Well, two points:

              1) In a lot of places in the world, mask wearing is pretty common. No one seems to suffer too much, and it’s worth noting that those places generally had much less severe Covid outbreaks than in places where mask wearing wasn’t already common. So maybe it’s a useful social norm even if it isn’t mandated.

              2) I think the general expectation is that mask wearing is going to continue to make sense in the context of Covid until we get to herd immunity. At that point, we won’t have to worry as much about folks who can’t take the vaccines or the people that the vaccine’s not effective for. Until then, mask-wearing (indoors) is a super low cost way to limit ongoing spread, even for people who have already been vaccinated.

              1. In a lot of places in the world, mask wearing is pretty common.

                I’m happy to look at any actual information you want to offer on this, but as someone who has traveled extensively in Asia and elsewhere, in my view this is one of the most cynical urban legends that has emerged over the past year. Wearing masks while outside on an occasional particularly smoggy day to keep your lungs from getting coated is not remotely close to what we’re talking about here.

                I think the general expectation is that mask wearing is going to continue to make sense in the context of Covid until we get to herd immunity.

                But that’s the rub: who’s going to determine we’re at herd immunity for any given locale, on what basis are they going to determine that, and for how long will that determination be valid? What reason are individual employers going to want to make that call any more than they want to make any of the other ones we’ve been discussing?

                1. “I’m happy to look at any actual information you want to offer on this, but as someone who has traveled extensively in Asia and elsewhere, in my view this is one of the most cynical urban legends that has emerged over the past year”

                  I mean, here’s an article from 2014 on the topic: https://qz.com/299003/a-quick-history-of-why-asians-wear-surgical-masks-in-public/

                  So hardly something that was invented just in the past year.

                  “But that’s the rub: who’s going to determine we’re at herd immunity for any given locale, on what basis are they going to determine that, and for how long will that determination be valid?”

                  Probably the same public health authorities that give us advice about things like the measles or any other disease that we generally consider to be well-managed these days.

                  1. “I mean, here’s an article from 2014 on the topic: …”

                    That was a fascinating article. I should hasten to add I have never traveled in Asia, so I have no opinion on the prevalence of masks there, but found these highlights fascinating:

                    1)The picture at the top of the article shows four young ladies with masks: 1 on her chin, 2 covering only the mouth, and one covering both mouth and nose. Some things are universal, I guess.
                    2)It sounds like the origins of the custom had as much to do with environmental pollution as disease.
                    3)Some of the logic is … not in the tradition of western medicine: “Meanwhile, the intake of “feng,” or noxious wind, is considered the most potent and common of TCM’s “Six External Causes” of disease. “Think about wind,” says Ching. “It can blow open doors, blow cool air off a body of water to the land surrounding it, or fire from one part of the forest to another. The door analogy relates to TCM’s understanding of how exposure to wind can weaken our body’s defenses.”
                    4)There are sociological, as opposed to medical reasons: “perfectly healthy teens now wear them, along with audio headsets, to signal a lack of desire to communicate with those around them. This is particularly true for young women seeking to avoid harassment on public transit”.
                    5)And fashion plays a role: “… last month at China Fashion Week, designer Yin Peng unveiled a line of “smog couture” clothese paired with a variety of masks, from Vader-esque ventilators to whole-head riot-gear rebreathers.”

                  2. Yeah. The pictures are outdoors, and one of the pictures is even titled “smog couture” — exactly what I said. Oh, except for the handful of moody teens that use them to signal that they want to be left alone.

                    And interestingly enough there’s nothing in your article about prevalence, which again anyone who has actually traveled to Japan (or even looked at any number of photos of actual crowds rather than cherry-picked groups of people for an article about masks) would understand to be in the single digits absent major smog.

                    On a secondary but amusing note, the second paragraph in your article says: “The reality is that the woven-cloth surgical masks provide minimal protection from environmental viruses anyway.” Oops.

        3. ” I also think that the continuation of mask requirements has a lot to do with presenting a public show that we are in this together. ”

          It also reduces the problem involving people willing to lie about vaccination to avoid wearing a mask.

      2. While it is possible to get Covid twice, just as it is possible to transmit the virus if you’ve been vaccinated or had and recovered from it, the odds of either are so low that they are effectively zero for policy purposes.

        1. Has that been proven? Citation please. Because a cursory search found me something with this: “Jennifer Juno, a senior research fellow at the University of Melbourne’s Doherty Institute who was not involved in the study, said the new study’s findings offer “encouraging news, as it suggests that the immune system is generating a robust memory response to infection, which is likely to play a role in providing some protection from reinfection.” But she added, “The key questions we need to address now include understanding the duration of this protection, and the specific immune responses that are most strongly associated with protection.”
          https://www.advisory.com/en/daily-briefing/2021/03/02/reinfection

          And I don’t think you addressed this at all: “Is it proven that if vaccinated you can’t transmit?”

          1. Queen – you and others making the arguments that we remain at risk of catching and transmitting covid after vaccination are essentially advocating that the human race evolve to a point where humans can only survive in a sterile environment.

            The advocacy that is being promoted will lasting permanent damage to the human immune system

            All brett is arguing for is a rational assessment of the risk – not an assessment based on paranoia

            1. That’s a strawman, which isn’t very rational and is often associated with paranoia.

              1. Actually, it’s not irrational (at least not completely).

                Through medical intervention, such as vaccines, we almost certainly are weakening the human immune system of future generations by interfering with natural selection that evolution relies on. Every person with a weak immune system who breeds after not having died of a viral infection because they got a vaccine is probably more likely to produce offspring with a weak immune system – repeat and rinse generation after generation.

                This probably won’t be a significant problem for many, many generations as the medical infrastructure worldwide survives and thrives. However at some point this medical infrastructure will break down regionally and, eventually, worldwide and a much larger percentage of the human population will then die of viral infections that, had natural selection not been interfered with, they would have survived.

                Hopefully this breakdown of medical infrastructure worldwide occurs as part of the latter stages of inevitable human extinction for other reasons so won’t really matter that much.

                1. LOL. Or–hear me out on this one–medical technology will continue to improve and fewer and fewer people will die of diseases, just has been going on for a couple of hundred years now.

                2. Through medical intervention, such as vaccines, we almost certainly are weakening the human immune system of future generations by interfering with natural selection that evolution relies on.

                  Yeah, back when we had strong immune systems and average life expectancy was 40 (largely cause of all those weak babies dying)

              2. Queen Amalthea
                April.5.2021 at 1:02 pm
                That’s a strawman, which isn’t very rational and is often associated with paranoia.

                Queen – its a better example of how you dont understand the development of the human immune system

            2. And Brett has given no useful information about that rational assessment. That would require definitive information about distribution the virions per ml from people who become reinfected and similar quality data about reinfection probabilities. As many who become reinfected remain asymptomatic, one should be far more cautious in policy than he suggests.

          2. Depends on whether you mean a meaningfully serious case of it, or the sort of trivial reinfection which is consistent with ‘immunity’ to any disease. Being ‘immune’ to a disease has never meant you couldn’t catch it again, just that your immune system would deal with it so expediently you likely wouldn’t notice catching it.

            See the graph under adaptive immunity? That little bump labeled “re-exposure”? That’s technically reinfection.

            Immunity, whether natural or derived from a vaccine, doesn’t stop you from getting a trivial reinfection which is, none the less, capable of being detected by sensitive tests like PCR. This has normally not been an issue, because never before have doctors been going around doing PCR tests on such a large scale. Nor has there been such a concerted effort to scare people into taking precautions even after being vaccinated.

            But, to answer your question, your odds of getting a meaningful reinfection after either contracting covid, or being vaccinated, are a lot lower than your odds of catching it despite wearing a mask.

            1. The First Big Study On COVID-19 Reinfection Is Here. Here’s What It Means.

              “The first large-scale investigation to tackle that question was published in The Lancet this week, and it found that the vast majority of people who have had COVID-19 are indeed protected from catching it again — for at least six months. However, people ages 65 and older are far more likely than younger individuals to experience repeat infection.

              The researchers analyzed data from Denmark’s national COVID-19 testing program, which has offered free PCR testing to roughly 4 million people living in the country. Overall, they found that a very small percentage of the population — 0.65% — experienced reinfection.

              For those 65 and under, getting the coronavirus once provided roughly 80% protection against reinfection. But for people 65 and older, it provided only about 47% protection against getting COVID-19 again, further highlighting how dangerous this disease can be for older adults.”

              So, you’re pretty safe after vaccination or having had Covid, unless you’re immune suppressed.

              1. And Brett you might read this. The picture is not as rosy as you’d like to believe:
                SARS-CoV-2 Infection after Vaccination in Health Care Workers in California
                “From December 16, 2020, through February 9, 2021, a total of 36,659 health care workers received the first dose of vaccine, and 28,184 of these persons (77%) received the second dose. The absolute risk of testing positive for SARS-CoV-2 after vaccination was 1.19% among health care workers at University of California, San Diego and 0.97% among those at University of California, Los Angeles; these rates are higher than the risks reported in the trials of mRNA-1273 vaccine and BNT162b2 vaccine. Possible explanations for this elevated risk include the availability of regular testing for asymptomatic and symptomatic persons at our institutions, a regional surge in infections in Southern California during our vaccination campaigns, and differences in demographic characteristics between the trial participants and the health care workers in our cohort.”

                1. “Possible explanations for this elevated risk include the availability of regular testing for asymptomatic and symptomatic persons at our institutions, ”

                  Gah! I’d probably be tearing my hair out right now if I weren’t already bald.

                  What did I say? Being “immune” to a virus doesn’t mean you can’t get infections that will show up on a PCR test. It has never meant that. All it means is that such infections are likely to be minor, probably asymptomatic.

                  Such trivial ‘infections’ will show up on a test, but they mean basically nothing in terms of disease transmission or health of the infected. So far the Covid vaccines are acting exactly the same as any normal vaccine, it’s just that you would not normally see mass PCR testing of asymptomatic people. It used to be a test reserved for the seriously ill.

                  1. Always a petty (and faulty) excuse for data that you don not like. In my world that is called academic misconduct.

            2. Brett,
              what you brush off as a trivial reinfection may be very far from that with respect to contagion. Those data still need to come in

        2. Brett, neither you now anyone else have a quantitative idea of how much virion that vaccinated superspreaders can shed

          1. Don Nico
            April.5.2021 at 5:30 pm
            “Brett, neither you now anyone else have a quantitative idea of how much virion that vaccinated superspreaders can shed”

            We do know it is significantly less than those whose vision of science & epidemiology is based on paranoia.

            1. Tom,
              Your snark is meaningless.
              What are you trying to prove? Are you a scientist? or an epidemiologist or just a smart ass?

              1. Don Nico
                April.5.2021 at 7:09 pm
                Tom,
                “Your snark is meaningless.
                What are you trying to prove? Are you a scientist? or an epidemiologist or just a smart ass?”

                Just someone with a reality based rational assessment of the risks, not someone who bases his assessment of the risk on paranoia. Did my comment hit too close to home?

      3. CDC thinks it likely.

        https://nymag.com/intelligencer/2021/04/cdc-data-suggests-vaccinated-dont-carry-cant-spread-virus.html

        Of course, if you want 100% assurance, I can’t promise that tomatoes won’t poison you, so you should probably stop eating them, and all other fruits, vegetables, meats, and fish. Minerals might poison you to, so no salt.

      4. You are asking the wrong question. The question you should be asking is “How likely is it that someone will get a severe enough case to require medical intervention twice?”

        The testing on the effectiveness testing on the vaccines shows that they don’t provide absolute protection against infection but infections that do occur in those who have been vaccinated will be less severe.

        Likely natural immunity in people who have had it and recover will follow a similar pattern. It’s not a complete protection against reinfection but it will reduce the severity of any reinfection cases.

      5. Is it proven that you can’t get Covid twice?

        To the contrary, it is proven that you can get Covid twice, it is just very, very rare (and never serious).

        Is it proven that if vaccinated you can’t transmit?

        You can carry a dog in a net — but you cannot breed dogs in a net.

        A person who is immune (and most vaccinated people are immune) cannot breed the virus in his own body, but he can carry viral particles that he acquired from the air around in his nostrils — on his hand, his clothes, even his mask!

        But this is a very inefficient vector, as you can imagine.

        1. Heh, my experience involving dogs and garden hoses suggests that you probably COULD breed dogs in a net.

        2. “To the contrary, it is proven that you can get Covid twice, it is just very, very rare (and never serious).”

          Even that is not true. In SA, reinfections are not nearly as rre as you imply.

        3. “A person who is immune (and most vaccinated people are immune) cannot breed the virus in his own body, but he can carry viral particles that he acquired from the air around in his nostrils — on his hand, his clothes, even his mask!”

          Incorrect, your immune person can certainly reproduce the virus and shed virions. S/he also can spread fomites

    2. Some places have done that in the past with flu shots.

      I seem to notice them recruiting for new employees more aggressively than their peers. Just sayin…

    3. Until such time as seeing someone not wearing a mask makes it likely that they’ve been vaccinated, rather then them just being an anti-mask asshole, then no, such a policy does not make sense.

    4. “Pretty silly since I’ve already had Covid”
      Wrong again Brett.
      In fact you can be a spreader. You might even be a superspreader.

      1. No. And, again, spare us your paranoid fantasies.

        1. No? How the hell do you KNOW? Of course you don’t. And that is your problem Brett. You mouth off a lot when you actually do NOT know anything

        2. What you call fantasies Brett are scientific measurements. Ever since the election of the Orange Clown you’ve been living in a paranoid fantasy world.

      2. At worst, a super spreader individual would only super-spread to the unvacced.
        Given that we have now reached the tipping point of supply equals demand, (local pharmacies are now daily sending out mass e-mails to get folks into their doors), then for the most part those unvaccinated will have chosen to be unvaccinated. So they bear the burden of the risks they assume.

        1. The superspreader spreads to anyone. If you are vaccinated, you have a much lower probability of becoming infected still 5 – 10% dependent on variant and on which vaccine you got is not a trivial chance.

  2. How about public accommodation laws? Can hotels refuse non-vaccinated? Can landlords evict non-vaccinated? Can planes, trains and shipping? Is baking having a cake baked more or less protected for vaccinated persons than for gender preference?

    1. Hotels and cakes: yes, the law allows those businesses to turn away unvaccinated customers. Unvaccinated people are not a protected class.

      Planes, trains and shipping are mostly common carriers and, if so, need specific legal basis for refusing service; they mostly cannot refuse unvaccinated people, but could require wearing masks or similar precautions.

      Landlords are apparently now not allowed to evict anyone, although exceptions may be made for the eviction of white males and other white supremacists.

      1. “Landlords are apparently now not allowed to evict anyone {obnoxious and unnecessary part omitted}.”

        This … is true. Not that landlords are generally a sympathetic class, but as a rule, most people expect to make money – workers from their jobs, and landlords from their rent.

        If you prevent people (such as landlords) from making money from their property, that eventually has adverse consequences down the road.

        In other words, some small amount of brief emergency tolling, or, better yet, ASSISTANCE IN PAYMENT would be fine. What we’ve seen is getting ridiculous.

        1. What could be more sympathetic than providing housing?

          1. Providing housing *FOR FREE!!!*

          2. If the concern of turning people out to the street is covid risk, then evict them with a shot in the arm. A ten dollar solution that minimizes the outright taking of property from property owners.

            But covid risk is just a cover story for progressive agenda. they wish to permanently create a squatter class that once in a rental property can never be moved.

            1. That is why you don’t want to own non-commercial rental property in California

        2. Loki,
          At least in Santa Monica (and, I’m pretty sure, also in the city of Los Angeles), you can evict tenants, and have been able to for either the entire Covid crisis, or, for almost that entire time.

          What you canNOT do is: evict someone for non-payment of rent, if that tenant alleges that non-payment is due directly or indirectly to Covid. I’m not arguing that this last provision is a good or a bad thing (as a tenant and rental property owner, I see both sides). I’m merely pointing out that tenants can and have been evicted for many reasons, including (this is, obviously, a non-exhaustive list): Selling drugs out of their apartment; attempting to rape another tenant in the building; assaulting and battering the on-site manager.

    2. Florida prohibited this last Friday.

      I think any private entity trying to do this would run afoul of both public accommodations *and* anti-trust laws. (Remember that the anti-trust laws include a right of private action.)

      1. I think any private entity trying to do this would run afoul of both public accommodations *and* anti-trust laws.

        Yes, but you’re an idiot. It would, of course, do neither.

        The only exception would be for those who claimed a disability that prevented them from being vaccinated, and even then the safety exception to the ADA might allow the private entity to offer some accommodation rather than simply force the entity to waive the mandate.

        1. You’re surely right, and I would never disagree with you over a point of law, but could you have made your point without the insult?

          1. Involving Dr. Ed? I don’t think so. There are limits.

            How the hell can a private entity requiring vaccinations trigger anti-trust law? It’s not just wrong, like when he invokes the non-existent HIPPA or claims that FERPA bans windows; it’s complete nonsense.

    3. In a just society – nobody could be refused.

      But Adler likes carrying water for Nazi polices, so he’s fine with it.

  3. This could be shortened to “no jab, no job.”

    Author needs some additional analysis to cover the ADA and RFRA and how refusal to take a vaccine for either medial or religious regions would require reasonable accommodations. Upon this revision, and upon this revision only, should the blog publish this post. Author should revise and re-submit.

    1. Author needs additional review to correct basic spelling errors (‘medial’). Upon this revision, and upon this revision only, should the blog publish this comment. Author should revise and re-submit.

      1. Lol. Thanks for catching my minor grammar error Queenie.

        1. Thanks for catching Adler’s minor legal (for a blog post) ‘error’, maddie.

          1. It’s not really that minor though. Vaccines are required at my university but a few years ago we had a case of mumps in the student population. Cue a lot of “how did this happen, we require vaccines?” Turns out the student is Muslim and many MMR vaccines contain pork, so he had a religious exemption. There are many Muslims who believe that getting any vaccine is haram and we give them the ability to opt out. Some Christian and Jewish groups believe something similar. How are we going to address that? I’m certain that we can’t effectively demarcate “legitimate” and “illegitimate” religious concerns and people will absolutely take advantage of such an exemption.

          2. He actually mentions it, but only in passing in a one sentence hand-wave. Didn’t you notice? gormadoc’s comment is, why if this was peer review, he’s be told to revise and resubmit. But law professors don’t have peer review, makes it easier on them.

    2. RFRA only applies to the federal government. (There are state RFRAs too, but those only apply to state governments.) A private employer is not governed by either. Title VII wouldn’t help a religious objector (see Gorsuch’s dissent from denial of cert today), but a state version might.

  4. Under University of California “Interim Policy: SARS-CoV-2 Vaccination Program,” effective January 15, 2021, UC employees who are required to be on campus to work have this option, “either consent to administration of the vaccine or affirmatively opt out of SARS CoV-2 vaccination.”

    But opting out requires UC employees to sign a declination form, on which they “acknowledge that I am aware of the following facts,” following which are listed five statements, such as “If I contract COVID-19, I can shed the virus for several days even before any symptoms appear. During the time I shed the virus, I can transmit it to patients, students, faculty, and staff.”

    Because the UC is a public institution, it is, as the cases have held, “an arm of the state,” and, as such, subject to the restrictions of the First Amendment.

    The government cannot compel its employees to agree with statements it authors, or risk losing their jobs if they don’t agree. That was established by SCOTUS when it ruled that West Virginia could not force public school students to salute the flag or recite the Pledge of Allegiance. Writing for the Court, Justice Robert H. Jackson held, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

    One other aspect of the UC Interim Policy is constitutional, but chilling in an Orwellian sense. Employees signing the declination form acknowledge, “I also will not receive a badge sticker showing that I have received the vaccine.”

    Elsewhere the Policy explains that some campuses “may distribute badge attachments, stickers, pins, or other indicators that vaccinated individuals may use to show that they have received the vaccine.”

    “All animals are equal, but some animals are more equal than others.” Or, from the perspective of a patient in one of UC’s hospitals, “All doctors are equal, but doctors without badges can kindly stay out of my room.”

    1. Good grief. You do know that animal farm was about Stalinist Russia, right? Things were, I dunno, a tiny bit more extreme there than ‘sign this acknowledging you won’t get a badge’

      1. Exactly, good grief. “Stalinist Russia” didn’t happen overnight, but it was a slow rolling despondency that eventually overwhelmed the country such that it still not fully recovered.

        Besides, those that don’t have the vaccine should have to wear yellow badges, maybe in a star shape, but not a five pointed star, maybe six points. What do you think?

        1. Me: “that’s some big hyperbole”
          Kalak: “Well allow me to Godwin in retort!”

        2. Of course the pink triangle and word “queer” have become points of pride and symbols of unity — as were women’s “choker” necklaces and short hair after the French Revolution.

          Large bureaucratic entities well might find an un-vaccinated symbol to be a symbol of rebellion that they can’t do anything about.

        3. “The Russian Revolution was a period of political and social revolution across the territory of the Russian Empire, commencing with the abolition of the monarchy in 1917 and concluding in 1922 with the Bolshevik establishment of the Soviet Union at the end of the Civil War.”

          So yeah, not overnight; just a bit longer than one presidential term – – – – – –

        4. “Stalinist Russia” didn’t happen overnight, but it was a slow rolling despondency that eventually overwhelmed the country such that it still not fully recovered.”

          I mean, there was an hones to God revolution, so it wasn’t some slippery slope from Tsarist Russia to Leninist/Stalinist Russia.

          1. Basically two revolutions: The first that got rid of the Tsars in favor of a semi-democratic republic, and the second that replaced the semi-democratic republic with a communist dictatorship before it could get established.

    2. “One other aspect of the UC Interim Policy is constitutional, but chilling in an Orwellian sense….“I also will not receive a badge sticker showing that I have received the vaccine.”

      That could backfire — big time.

      This country is on the cusp of a true wave of populism (what do you think MAGA is?) and a vaccine mandate could crystalize a lot of populist issues the way that the Vietnam draft crystalized the feminist, civil rights, and environmental movements. Remember that none of those three really had anything to do with the draft — women weren’t being drafted, the Army was one of the few places that was integrated, and raw sewerage floating down our rivers had nothing to do with Vietnam.

      All you need is a critical mass and then IC is looking at not having a sticker as a form of populist rebellion.

    3. The government cannot compel its employees to agree with statements it authors, or risk losing their jobs if they don’t agree.

      There is a distinction between what the government can compel its employees to do while on the job and what they can compel their subjects to do.

      The federal government can, for example, prohibit a VA doctor from telling their patients in a VA hospital that “vaccines cause autism”. The government can’t prohibit you or me from stating that lie in public forums or in private forums such as this.

  5. A relative of a relative was until recently the principal of a private religious girls’ school. They had a strict vaccination policy. However, one girl had a severely compromised immune system (I think because of chemo) and could not be vaccinated. After consulting with doctors, they made an exception for her.

    Suppose someone has a medical condition that means they should not take the vaccine. Wouldn’t a vaccine requirement in that case be disability discrimination?

    1. Here’s a couple of narrower questions:

      1)You’re a nurse who works in the transplant ward, with severely immunocompromised patients. Can you be required as a condition of employment to get vaccinated for the flu, or perhaps even some other disease that doesn’t generally bother healthy people, but is a severe risk to the patients in that ward?

      2)Typhoid Mary (who was a typhoid carrier) promised to stop working as a cook, but then again worked as a cook under assumed names and started outbreaks. After a couple of episodes of that she was incarcerated/quarantined. IIRC she was offered release if she would consent to having her gallbladder removed (it being thought that was the typhoid reservoir), but she declined. If there had been a typhoid vaccine, could she have been required to get it as a requirement of release and/or employment as a cook?

      1. The americans with disabilities act prevents a hospital from refusing to hire a person who would be working with patients who has Aids,

        1. … how do you think HIV is transmitted, such that you think this is a reasonable point?

      2. Here is an even more narrow question. You have HIV. Do you have to inform your sex partner before you have sex without a condom?

        1. Irrelevant; women don’t wear condoms, men are women.

      3. Most hospitals I know have requirements for all employees to get flu vaccinations. Hospital workers will be working directly or near sick people. No hospital wants to give a patient another health problem, especially from staff.

        1. Hospitals are currently a huge source of secondary infections, notably staph. According to the CDC, 1 in 25 people that go in for something come down with something just from the hospital.

          1. The clinical term is a nosocomial infection or a infection you may acquire at a hospital. These are a big concern for hospitals and they will take action to minimize these infections. That may even include employee vaccinations for infection not commonly given to the public. Employees might be vaccinated for Hepatitis B (serum hepatitis) or other infections to which the general public might not be exposed

            1. I’ve been in more hospitals than I care for, and I am not particularly impressed with their precautions. The medical profession got lazy about asepsis after antibiotics became common, and they still haven’t recovered from that.

              I’m not saying they have to replicate the space suit arrangement from Andromeda Strain, but less carpet and more UV lights might be in order, as well as use of naturally antiseptic materials for contact surfaces such as door knobs.

              1. Sure, Brett, your local hospital will be installing silver door knobs for your convenience

    2. Vaccine exemptions for those with legitimate medical conditions is well established. However some do try to get fake doctors notes to unfairly try to get an exemption.

    3. The existence of such people are exactly why it’s important to have broader vaccination requirements instead of saying “if you don’t want to get vaccinated, you’re the only one who bears the consequences”. Herd immunity is a real thing, with positive externalities.

      Slightly different take: I’ve never heard of a vaccination requirement that doesn’t have an exception for when the vaccine is contraindicated. I’m sure they exist, but very much as the exception rather than the rule.

      1. “Herd immunity”
        There is no herd “immunity.”
        There is herd resistance.

    4. There really aren’t any true medical exemptions, other than history of anaphylaxis to a component of what is in the vial. The ingredient list is pretty short, and mostly small molecules that cannot cause anaphylaxis. There is no active virus, indeed no virus component at all. Thus no contraindication in a weakened immune system.

      All ‘medical exemptions’ are figments of the imagination of those who wish, for whatever reason, to avoid vaccination. A person with a ‘weakened’ immune system should welcome a risk free boost in immunity to a virus that would find a safe haven within such a host.

      1. Haven’t there been a few people who have had an anaphylactic reaction due to being allergic to some specific ingredient of the vaccine? Fairly rare, but possible. I’m asking you, since you seem to know what you are talking about.

        1. The most common component that some are allergic to is residual polyethylene glycol

  6. For those interested, of course for purely legitimate reasons. Keep in mind the FBI will be watching you

    https://files.catbox.moe/iwledn.pdf

    1. The government should establish an effective reward for those who identify pandemic-flouting forgers, and a one-year term of incarceration for each person convicted.

      Being a lethally reckless, belligerently ignorant, anti-social misfit should have consequences.

  7. Emergency use authorization is the same exact blessing that the FDA gave to the use of Hydroxychloroquine for treatment and prevention of COVID.

    Imagine the liberal heads exploding if private companies were making HCQ doses mandatory under the Trump administration. 🙂

    I’m sure Adler is right. As a general matter, my comment is that the concept of “private companies” is becoming incrementally more fictional all the time, as the bureaucratic monstrosity dictates more and more of their behavior.

    In 2020, for the first time ever, the Federal Reserve became a buyer of corporate bonds. As someone once wrote, “The rich rule over the poor, and the borrower is slave to the lender.”

    1. Yes, they probably could. And any employer that tried to make such a requirement is clearly being led by someone off their rocker, and the employees should quit anyway.

      So if you sincerely believe any of the conspiracy nonsense around the vaccines? Then sure, quit in protest if your employer requires one. Given your unreasonable beliefs, that is a reasonable course of action.

  8. While it may not seem like it employer have a lot of discretion when employee health issues are concerned. If you have to wear a respirator in the course of your work the employer can require that you have no facial hair. The employer can not make an unreasonable request. Say that an employee require that potential employees lift 50 pounds when the job does not require such strength. If however the job does lifting a 30 pound tool kit you can require that strength. It does not seem unusual to have a vaccination requirement.

  9. While the vaccine manufacturer can not be held liable for ill effects of anyone who is vaccinated, if an employer mandates it, wouldn’t any such ill effect come under the worker’s comp law?

    Likewise, in addition to everything else, if a public accommodation requires it of the public, couldn’t they be liable as much as they are for a slip & fall?

    Just asking…

    1. Yes … it would stand to reason that any employer mandating an EUA-only vaccine could be liable for any side-effects, short or long term.

      Beyond that, the current COVID vaccines are clearly experimental. Does the Nuremberg code (https://www.nejm.org/doi/full/10.1056/NEJM199711133372006) not have any legal teeth whatsoever in this country?

  10. Wonder which there will be more of, the real vaccination passports, or the fake.

    1. I am left wondering what would be the reason for a fake vaccination passport? The vaccine is essentially available to all individuals so there is no financial reason to avoid a vaccine. If you have a medical reason to not get vaccinated that can be documented. That leave people who have religious or philosophical reason to avoid the vaccine. If you have one of these reason would you not want that to be known. You suggest there are people who would be secretly unvaccinated. What does it say about your religious or philosophical beliefs if you then turn around and hid them by using a fake passport?

      1. Hypocrisy and superstition seem inseparable.

      2. You remember those “I have a medical condition that says I can’t wear a mask, so fuck off” cards that falsely cited the ADA and cited the CDC that were circulating last year?

        Anti-maskers aren’t worried about honesty. And skip the number “9” when counting†.
        ________
        †I refer, of course, to the ninth (sometimes eighth) commandment: “Thou shall not bear false witness” (aka, lying).

        1. You must not be a lawyer if you aren’t able to distinguish between lying and bearing false witness ;<)

          Seriously though, the discussion assumes that all individuals have access to vaccines. Someday might be true but for now it might be more difficult for the undocumented. And, there is distrust in the black community. So it's not just a matter of cranks refusing for whatever reason.

  11. I agree that an employer may act at-will, absent specific prohibitions (EEO, HIPAA, FERPA, ADA, et c.).

    Given that, should (and do) Universities routinely inquire regarding HPV and measles vaccination status? Both of those diseases are more prevalent and spread more easily than SARS-COVi-2-x, so inquiry is scientifically prudent.

    And should (and do) Universities routinely test for the presence of medical conditions which affect the general welfare? A student who has had an abortion, for example, has affected the general welfare by reducing the potential workforce in a manner similar to the exclusion of an illegal alien. Granted, the medical condition happened in the past, does not directly affect those around the tested student, yada yada yada — just like a past immunity-producing CoViD infection (by obviating the need for vaccination, such naturally acquired immunity allows a dose of vaccine to be redirected to one of the 1,800,000,000 desperately needy residents of the continent of Africa).

    I want to be woke!! So… should I help my needy dark-skinned cousins in Africa or should I instead pander to the pseudo-scientific whims of privileged white men cowering in the shadow of a non-life-threatening illness?

  12. As a matter of law generally, if an employer can require an experimental drug not fully approved by the FDA, what other kinds of conditions can employers place on employment, particularly involving bodily autonomy?

    Could they require a serial number be tattooed on your arm? Could they require a 4 gauge bull-ring septum piercing? Medical sterilization?

    1. You seem disaffected, cranky, even desperate.

      Are you getting tired of being a loser in the culture war?

    2. As a general rule of thumb, legal causes to fire (or not hire) operate by a “black list”. That is to say, law, statutes and policy specify invalid reasons to fire/not-hire someone. If something isn’t on that list? It’s generally game.

      So to your specific cases…

      Probably, probably, and maybe.

      For the first two, I can actually imagine a realistic scenario that’s close: a tattoo parlor that refuses to hire someone that has no visible tattoos, or a piercing pagoda that refuses to hire someone with no visible piercings.

      Unless the hired/not-hired person can tie their discriminatory treatment to one of the blacklisted motivations, (that is, “everyone knows Jewish people don’t get tattoos, so their anti-no-tattoo policy is just a mask for their anti-Semitic hiring practices!”)

      And of course, the reverse of these is obviously true: an employer absolutely can refuse to hire someone for having visible tattoos or piercings.

      Sterilization (for/against) is trickier, but if the policy applies to men and women then it helps (though of course, in the real world employers being overly concerned with whether or not their employees are going to have kids cuts against women alone, and is not equal opportunity) it’s odds.

    3. Well you see, that is just it. The vaccines are experimental, are they not? I mean, I did affirmatively choose to get the mRNA-1273 vaccine. That is one thing. My employer never entered the equation. I don’t see how it can possibly be legal for an employer to require an experimental treatment as a condition of employment. Professor Adler argued one side; I’d like to hear others argue against this.

      Just remember, if you give the government (or its delegates) the power of autonomy over your own body, there will be no end to this…and it will not end well. You can be sure of that.

      1. How would this play with abortion? Can an employer fire an employee for having an abortion (or not having one)?

        1. Different circumstance = abortion. Two lives at play.

          On the firing question….I don’t think so, but honestly, who can say definitively? Requiring the use of an experimental treatment to earn a livelihood seems pretty off-base to me. Congress (or the FDA) can solve the issue by lifting the EUA and accepting the vaccines via their regular review process.

    4. ML, you are a trained lawyer. You were taught the answer to your dumbass hypotheticals, and how they are distinguished – also in caselaw – by required vaccinations, experimental or no.

      You should be ashamed.

  13. “Could they require a serial number be tattooed on your arm? Could they require a 4 gauge bull-ring septum piercing? Medical sterilization?”

    What would be the reason for requiring these actions. If an employee is likely to have broad contact with the public, the employer can require that they take actions to avoid exposing the public (customers) by getting the vaccination. I see no reason to require tattoos, bull rings or sterilization.

    1. M L’s scenarios are intentionally absurd, but there are similar ones (that would address the same question) that are much more reasonable. I gave some above (tattoo parlor/piercing pagoda that want employees to look the part). Here’s another:

      Some companies are experimenting with microchips implanted in the wrist as a replacement for employee ID cards.

      Last time I checked, the tech wasn’t really there yet†, but if they worked out the kinks, it’s conceivable that a security-concscious employer could require everyone to get such a chip instead of an old-fashioned card.

      So there you have it. A few plausible reasons, not related to vaccines (which can already be required by schools, universities, employers, etc.‡) for an employer to mandate body modification.
      ________
      †RFID chips can and do burn out, particularly when used frequently. When it’s on a piece of plastic you carry, you can get a new one. It’s annoying, but not a big deal. If the chip were in your flesh? Then it becomes a bigger deal. So the tech has some ways to go before it’s ready for prime-time use.
      ‡Exceptions/waivers often given for legitimate medical need. And also religious objections. Though in some industries, the need is great enough that exemptions are not allowed.

    2. “Could they require a serial number be tattooed on your arm? Could they require a 4 gauge bull-ring septum piercing? Medical sterilization?”

      In a fully libertarian employment environment, why not?
      Bad employment practices should lead employees to vote with their feet, and leave. Those who view employer provided septal piercings or sterilization as a plus might opt to stay. It is not as if the employer barred the doors and is forcing these interventions on unwilling subjects.

  14. Allowing “religious” objections is de facto making the vaccine entirely optional.

    1. fafalone – not it’s not. My religion may permit or even require vaccination, but I may yet be philosophically opposed to it. Not every opinion is a religion.

  15. Reading the comments of masked up, vaccinated statist so-called libertarians, here, who pretend not to understand those choosing not to mask up and be vaccinated is disturbing.

    But, more likely, we’re reading the self-serving opinions of those who don’t have to mask up and be vaccinated for their white collar work denouncing those loathe to do so and be deprived of good oxygen all day and be shot up with RNA genetic modifying and toxic garbage.

    All of this globalist and fascist hyper-controlling sanctimony is being invoked on account of a minor flu illness that has always killed a percentage of the elderly and those with co-morbidities every year, but rarely the young and fitter. The flu has been renamed and marketed for a successful financial take-down and social comity/ cohesion destruction of the brain-washed and programmed middle classes around the world.

    Mask up and vaccinate, minions.

    1. Wow, you forgot your med several days in a row.

      But seriously “the flu has been renamed and marketed”
      is a gross and dangerous lie for which you deserve cancellation.

  16. I recently researched this for a short article I wrote. I can tell you that there is a lot of contradicting authority on this. I found lots of articles that talked about it being illegal to require employees to take something only approved under an EUA. I also found guidance from a local county that expressly said that employers could not require employees take something before full approval.

    I could not find a case saying one way or another. It probably also varies from state to state, as some states may have different statutes or interpretations of laws prohibiting termination in violation of a public policy. Besides, there are all sorts of considerations the ADA and various state and federal anti-discrimination statutes.

    So, no, it’s not entirely clear that employers can require vaccines. And there are enough exceptions and risks of fights that it’s probably not worth doing even if you could.

Please to post comments