Vaccines

Can the Federal Government Require Vaccination of Health Care Workers?

Exploring the legal issues raised by another of the Biden Administration's newly announced COVID policies.

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This past week the White House announced a series of new, aggressive COVID-19 policies. In addition to the new OSHA emergency standard requiring large employers to test or vaccinate their employees, the Biden Administration also announced that it would require Medicare and Medicaid service providers to mandate vaccination of their workers. This too may raise legal issues, but not necessarily the broad constitutional claims identified by some commentators. This post aims to explore some of those issues.

We do not yet have the details of the measure, but here is how the White House described the new policy:

The Centers for Medicare & Medicaid Services (CMS) is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies. This action builds on the vaccination requirement for nursing facilities recently announced by CMS, and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country. Some facilities and states have begun to adopt hospital staff or health care sector vaccination mandates. This action will create a consistent standard across the country, while giving patients assurance of the vaccination status of those delivering care.

As with the OHSA standard, the details matter, and we will know much more about the legal strengths and weaknesses once we see what CMS actually does and how it justifies its actions. That said, I think we can identify where the primary issues are. (Also, as with my analysis of the OSHA standard, I am focusing on the federal government's authority, and not on the extent to which there need to be medical or religious exemptions and other individual rights claims that might be made.)

To understand how this new policy may work, it is important to remember that CMS already imposes extensive requirements on hospitals and other health care providers that participate in Medicaid, Medicare and other federal health care programs. These requirements are statutorily authorized and impose a wide range of requirements on facilities—public and private—that want to receive reimbursement from the federal government. Some of these requirements relate directly to the spread of contagious disease, and CMS adopted additional COVID-19 requirements for long-term care facilities earlier this year. Hospitals and other health care providers are also generally expected to comply with industry best practices, which generally encourage the vaccination of health care personnel (see, e.g., here and here).

Even though a new policy will affect state providers, I do not think that these conditions are likely to trigger the sort of spending clause analysis we saw in NFIB v. Sebelius. This is because the conditions at issue here are not imposed on states as states. Rather they are imposed on state entities as service providers. So, just as the federal government may regulate states as employers without raising commandeering concerns (as was upheld in Garcia), the federal government may impose conditions on state receipt of federal money so long as these are general conditions imposed on public and private entities alike, and this is why the raft of conditions already imposed on state health care service providers have not previously been questioned, let alone successfully challenged.

Moreover, insofar as placing conditions on some providers raises federalism concerns, I suspect they would be upheld under Sabri v. United States, in which a unanimous Supreme Court held that the federal government may place reasonable conditions on the receipt of federal funds that are designed to ensure that the funds are not misspent or do not otherwise undermine federal purposes. Under Sabri's logic, I doubt courts would question whether the federal government can ensure that recipients of health care funds take measures to ensure their facilities are safe and effectively manage health risks. Put more simply, the federal government does not have to fund health care services that make people sick.

What this means is that any legal vulnerabilities in the CMS rule will likely arise from overbroad requirements or insufficient attention to equivalent (but less intrusive) means of reducing relevant risks. Requiring all program participants to offer vaccines to their employees is easy. Mandating that they terminate employees who fail to get one might be more of a reach.

The purpose of the requirements is to prevent the spread of COVID-19 among health care workers and patients, and requiring workers to be vaccinated is certainly an effective way to reduce the risks posed to unvaccinated recipients of health care services. There will be questions about whether alternative measures can be equally effective, but insofar as the requirements apply to those who are providing services in person, there may not be as many alternative ways to mitigate the risk to an equivalent extent. On the other hand, many health care settings use PPE and other measures to control the risk of disease spread, and some employers or employees may be able to argue that such measures provide equivalent protection. At the very least, I would think CMS would have to address such arguments in putting forth the rule.

What all this means is that I would not expect some broad universal challenge to the new CMS rules. Rather, I would expect to see specific, as-applied challenges filed by individual service providers or their employees making the argument that CMS's purposes can be adequately achieved with less intrusive or more reasonable restrictions. I would also expect that whether these challenges succeed will depend on whether CMS has considered such possibilities and offered a reasonable explanation for the regulatory choice it made. Outside of claims for religious or medically necessary exemptions (which might trigger greater scrutiny), I would also expect the judicial review of such decisions to be quite deferential.

NEXT: The Procedural Puzzles of SB8, Part II: Failing Offensive Litigation

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  1. Wow. In any sane world, it would be obvious that the government has powers to stop the spread of deadly infections, but in this f’ed up MAGA country that is not true. Every single effort has been fought tooth and nail as if it was a dire threat to fundamental liberty. Masks-sued over, social distancing-sued over, vaccines-sued over. You nuts are part of a death cult and dragging the rest of us down with you.

    1. It’s not deadly for that much of the population. If you are under 60 years old, and don’t have well known comorbidities, COVID-19 is very unlikely to kill you. If you are under 18, there maybe a dozen things more dangerous to you, such as drunk driving, drowning, drive by shootings, electrocution, etc.

      1. Drunk driving is illegal and we have police that arrest drunk drivers. Drive by shootings are illegal and we arrest and give long prison sentences to those who do that. We have rigorous electrical safety standards to proven electrocution.

        1. You are so ridiculous paid troll that you compared drunk driving, drive by shootings, and electrical safety to vaccinations.

          Literally cannot imagine anyone being this stupid, but yet here you are making false comparisons because of your boot licking for the democrat party.

          Hope they at least pay you well, although you have no influence here so I guess not.

          1. You are so ridiculous paid troll that you compared drunk driving, drive by shootings, and electrical safety to vaccinations

            Did you read the post MollyGodiva was responding to?

        2. And kids die from drownings, drug ODs, lightning strikes, etc. at a higher rate. The problem that you so are trying so hard to dodge is that age correlates almost exponentially to deaths by COVID-19. It just isn’t killing enough kids, in particular, to worry about. It kills old people, and people with well known comorbidities, such as obesity.

          1. No need to dodge anything, OSHA will not need to establish relative deadliness of COVID in relation to these other hazards in order for its rules to be upheld.

            1. OSHA will need to establish that it’s ever been given the power, by Congress, to write such rules.

              Which it hasn’t.

              OSHA will also have to demonstrate why, 18 months into the Covid situation, and over 6 months after the vaccines came out, it now has to skip the APA rules for this new order.

              So since they’re 0-2 right there, we’re done

    2. “Wow. In any sane world, it would be obvious that the government has powers to stop the spread of deadly infections, but in this f’ed up MAGA country that is not true.”

      Giving government absolute control to do what they deem to be best could never be a bad idea.

      I love how abiding by the Constitution is now evil MAGA for you.

      “Every single effort has been fought tooth and nail as if it was a dire threat to fundamental liberty.”

      Shall we look into the policies dealing with AIDS? Even shutting down bath houses was a massive problem. Damned MAGA people.

      “Masks-sued over, social distancing-sued over, vaccines-sued over. You nuts are part of a death cult and dragging the rest of us down with you.”

      Perhaps your side could attempt to propose LEGAL legislation and mandates…

      1. The idea that no covid prevention measures are constitutional is a lie that is propagated by the pro-covid Rs. For the rest of us preventing a deadly virus is core government powers.

        1. “lie that is propagated by the pro-covid Rs. ”
          Wow! You could not label yourself a partisan hack with any better line than that one. Be careful what you call a lie, for your post has most if not all of the same characteristics.

          How did you feel about trading away freedom for security through the Patriot Act?
          How do you feel about trading away mandatory judicial review of killing of Americans citizens in any context?
          This new ploy is no different, especially as the disease is becoming endemic and mutating into variants that are increasingly successful at evading vaccines that are specifically designed to detect the receptor binding domain of the spike protein.

          I am glad that I don’t have the responsibility of balance competing legitimate interests. I am my family are vaccinated. My son and I with persistent side effects; yet I advocate vaccination.
          But “preventing a deadly virus” is not what governments are doing. governments have not prevented the spread of the delta variant; they have not prevented the spread of the lambda and mu variants in South America. And they refuse to recognize in any official way the immunity acquired through infection. What we have is just increasing steps toward unbridled executive power and not just in the US.

          1. Sure, I’m going to take the word of alleged scientists like FowChee and a bumbling president like BiteMe.
            If the vaccines are effective in preventing the spread of Kung Flu, how come 19 or 20 gorillas at Atlanta Zoo were infected by a zoo worker who was fully vaccinated?

            https://people.com/pets/zoo-atlanta-20-gorillas-exposed-to-covid-will-get-vaccinated-after-recovery/

          2. Not sure what you call the guy who replied to you above but pro-covid, for partisan Republican reasons.

        2. Government measures are excessive.
          We already have more then 80% vaccination and natural immunity.
          Their draconian North Korea style measures will have zero effect on COVID-19.

        3. You jump jump straight to claiming that your political opponents don’t believe in any prevention measures. Of course they do. For example, many would exempt those with natural immunity through having survived the virus, from vaccination. After all, there is significant evidence that their immunities are superior to those vaccinated with experimental therapies, as are all those non FDA approved vaccines being mandated. And, yes, many oppose requiring the vaccination of kids, who aren’t going to die from the virus (unless morbidly obese) anyway, and the EUAs for the vaccines available (bypassing their non approval as vaccines by the FDA) don’t cover.

          1. After all, there is significant evidence that their immunities are superior to those vaccinated with experimental therapies

            A single un-peer-reviewed study.

            1. You got a study that proves otherwise, David?

              “Your studies aren’t good enough to block us from forcing you to dance through hoops” is not an argument any sane person would make.

              So why are you making it?

              The default is “government may not do anything”. you move off that default by providing solid evidence that what the government proposes is actually worth doing.

              So “you’ve only got a single un-peer-reviewed study to support your opposition to the gov’t forcing people who had Covid to take the experimental ‘vaccines'” is a worthless argument, unless you have a “I have these peer-reviewed studies that show that the vaccine provides significantly better Covid protection that actually having had Covid” to go with it.

              So, do you have that? Or are you just eagerly sucking up to the authoritarian of the week?

              1. There is in fact a study out of Kentucky saying otherwise, but I’m not sure why I need a study proving not X in order to point out that a single non-peer-viewed study is not “significant evidence” that X is true.

                1. Really? you have a link to that study?

                  “but I’m not sure why I need a study proving not X in order to point out that a single non-peer-viewed study is not “significant evidence” that X is true.”

                  Well, that would be because anyone who actually understands what a decent health study looks like can look at that study and say “yeah, they look like they did the right things”.

                  And because anyone who has the slightest shred of a clue about immunology expects that an immune response formed against an infection of an entire virus is going to provide far better protection than an immune response formed by two shots of one (mutatable) viral protein in your arm.

                  So the claim that “the shot is better” requires much more support than the reverse.

                  At least, it does if you actually know what you’re talking about

                  1. FWIW, this was the first hit when I searched:

                    “New CDC Study: Vaccination Offers Higher Protection than Previous COVID-19 Infection”

                    (that’s the press release, but it sees to have a link to the study)

                    1. Yeah, i read that.

                      The headline is a flat out lie.

                      In today’s MMWR, a study of COVID-19 infections in Kentucky among people who were previously infected with SAR-CoV-2 shows that unvaccinated individuals are more than twice as likely to be reinfected with COVID-19 than those who were fully vaccinated after initially contracting the virus.

                      They did not compare “vaccinated” vs “previous infection”, they compared “previous infection, then vaccinated” vs “previous infection, and not vaccinated.”

                      The Israeli study actually did compare “vaccinated, no previous covid” to “unvaccinated, previously had covid”.
                      It found much better protection for those who previously had covid.

                      As it’s the only study available to the public that’s looked at that question, it’s the one that should be believed

                2. (My comment again, without the links, so it hopefully won’t go into moderation)
                  Would this be the study you’re relying on?

                  https://www.cdc.gov/media/releases/2021/s0806-vaccination-protection.html

                  To quote:
                  This study found that among Kentucky residents who were previously infected with SARS-CoV-2 in 2020, those who were unvaccinated against COVID-19 had significantly higher likelihood of reinfection during May and June 2021. This finding supports the CDC recommendation that all eligible persons be offered COVID-19 vaccination, regardless of previous SARS-CoV-2 infection status.

                  So, the study does not compare “people who previously had covid” with “people who did not previously have covid, but were vaccinated”. it compares “people who previously had covid and since then were vaccinated” vs “people who previously had covid and did not get the vaccine.”

                  So, on the question of “what provides better protection, being infected, or getting the vaccine”, the study says nothing.

                  On the study design, what I can say is “it’s crap”.

                  Here’s the meat of the study:
                  Overall, 246 case-patients met eligibility requirements and were successfully matched by age, sex, and date of initial infection with 492 controls. Among the population included in the analysis, 60.6% were female, and 204 (82.9%) case-patients were initially infected during October–December 2020 (Table 1). Among case-patients, 20.3% were fully vaccinated, compared with 34.3% of controls

                  1: They only took people who had Covid between March and December of 2020. So to the extent that there’s a time delay fall off issue, they weighted it in favor of the vaccine (they should have taken anyone who had previous had Covid, including those who had it this year).

                  2: 246 positive cases over May and June. I pulled up the Woldometer data for KY:
                  By eyeball, KY averaged 400 – 500 cases a day over that time period (61 days)
                  That means ~1% of the cases in May and June were people who had previously had Covid.
                  ~14% of KY has had Covid
                  By June 30, 49.46% of KY had at least one vaccine shot, and 43.48% were fully vaccinated

                  So, what are the numbers that they had access to, but did not report as part of their study:
                  1: The % of those who had ever had covid, who got it again between May 1 – June 30
                  2: The % of those who were partially vaccinated, who got covid between May 1 – June 30. With a breakout for “had covid before” vs “didn’t have covid before”
                  3: The % of those who were fully vaccinated, who got covid between May 1 – June 30. With a breakout for “had covid before” vs “didn’t have covid before”
                  4 The % of those who had never had covid, and who weren’t vaccinated, who got covid for the first time between May 1 – June 30

                  Because “relative risk” is garbage. “Oh, by not getting vaccinated you went from a 1 in 10,000 chance of getting Covid again, to a 2.34 in 10,000 chance of getting Covid again! The horror!”

                  Whenever someone gives you relative numbers without giving you the absolute numbers, they’re BSing you.

                  So, this study does not even address what you claim it proved (covid infection vs vaccinated), and was poorly designed to prove anything.

                  I’m going with the Israeli study.

                  And so is anyone else with any sense

        4. Deadly virus..really? Do facts matter? This isn’t the bubonic plague and the “experts” are constantly changing their position as they just don’t have the balls to tell the politicians and citizens they just don’t know….science is like that..you have theories but your testing doesn’t back them up and you have to admit you were wrong and keep researching. People want govt to always have the answer and provide 100% security and certainty. And govt is more than happy to pretend they can protect you..but they can’t. Get vaccinated and live your life. Time the shutdowns stop

          1. “Deadly virus..really? ”
            Yes, really. All around the world with the US leading the pack

    3. In any sane world, it would be obvious that the government has powers to stop the spread of deadly infections

      It is obvious that the government has those powers. It’s not obvious that every government actor, at every level of government, has the power to do so—which I would imagine is true in every other remotely free society.

      For instance, there’s no real question (apart from a handful of Blackman-style cranks) that if a state governor and legislature wanted to impose a rule like this, they could. That doesn’t necessarily mean that the President can unilaterally.

      1. Right. But then, those who complain that Biden/Congress can’t do this should institute it the rule on the state level. it is quite a tell that they don’t.

        1. Has any state does this on the state level?

        2. It is not a tell. It is a prerogative of each State governor. You are in such a rush to make a political point that you choose to ignore that

          1. Of course it is each governor’s prerogative. The tell is their prerogative (which is of course political) is not to have a vaccine mandate.

        3. Well, I don’t have the power to institute it on any level, though I certainly wish that the people who do, would.

          But that doesn’t mean that by thinking critically about whether a given actor does, in fact, have that power—or even if we conclude that the actor does not—that we think that the United States is an insane “f’ed up MAGA country”.

          1. But we can conclude that those who supposedly oppose the mandate on the basis of statutory authority or federalism, but still won’t institute in their state, hold a warped version of libertarianism.

        4. “those who complain that Biden/Congress can’t do this should institute it the rule on the state level.”

          Why? It’s a stupid rule, and only a scientific ignoramus or a liar would push it.

          Actually having been infected by the virus gives your immune system many more targets to react against than any of the vaccines. So, absent a strong study showing otherwise, the starting point is that “no person who’s had it should need to take the vaccine.”

          If this were something as effective as the MMR or Smallpox vaccines, then none of this whining would be happening. Because the people who were vaccinated would be safe from Covid.

          But the situation is that people who’ve had the “vaccines” can still act as carriers for Covid to infect others, and can still get infected themselves.

          And when your “vaccine” is that pathetic, you’re going to have a really hard time justifying forcing people to take it

    4. You are so right. Vaccination requirements have been around over 150 years in this country. That they are suddenly wrong is silly. It is not based on law or science but instead is the tenant of a cult.

      1. And yet the failure of the US Government agencies to recognize officially naturally acquired immunity through previous infection is NOT science.
        It is the tenant of a cult of executive power.

        1. Because the science is not there yet. There are some studies, but nothing to the rigor that would justify forgoing vaccines which have been rigorously tested.

          1. That is patent nonsense Molly. Titre levels have been measured in many previously infected patients. That you don’t follow closely the relevant medical literature does not mean it is not so.
            Instead CDC refuses to set any scientific standard for the use of serology tests even when those tests show titre levels comparable to or greater to vaccine induced levels.
            It is true that the absence of antibodies does not prove lack of immunity but the presence of antibodies does.

            US government policy refuses to follow the science when other countries have done so

          2. “Because the science is not there yet.”

            Bzzt, wrong

            Until you have science that strongly proves that natural immunity is NOT as good as the vaccine, the default is “natural immunity cuts it”.

        2. Moreover, the science also says that adverse reactions are much more prevalent and much more serious among those who have already had the virus and who have recovered.

          The way I read it, demanding a useless and dangerous measure for those who have recovered amounts to a violation of the Helsinki Accords, i.e., is a crime against humanity.

          FWIW.

          1. ” adverse reactions are much more prevalent and much more serious among those who have already had the virus”

            The only medical paper that I found to support this claim was a very small study, not yet peer-reviewed, that was based on self-reporting; viz., “Previous COVID-19 infection but not Long-COVID is associated with increased adverse events following BNT162b2/Pfizer vaccination.”
            I am not convinced. If you have a better medical journal parer that substantiates this claim, I’d love to read it.

          2. You are a very serious person. We can tell because you made up stuff about “the science,” and then also made up stuff about the law. (Can you tell me which provision of the “Helsinki Accords” addresses the issue? I’ll help by providing a link.

            http://hrlibrary.umn.edu/osce/basics/finact75.htm )

      2. What is novel is mandating experimental therapies that are not FDA approved vaccines.

        1. Bruce,
          Pfizer is now fully approved.

    5. Molly,

      Is your argument that the government has the power to do whatever it wants in order to stop COVID?

      Or, perhaps, it doesn’t have the power to do some things, even if they may stop COVID spread.

      I’m just curious here which side you’re on.

      1. Lets turn it around and ask “What government measures would the Rs accept”?
        The answer is: none.

        1. Nonsense, Molly. The government certainly has the authority to regulate workplace rules for its employees limited by its prior agreements with relevant labor unions. No one seriously doubts that

        2. I’ll note you don’t appear to have actually answered the question.

          And, BTW you’re incorrect. The GOP undertook several measures to help stop the spread of COVID. The most notable of which, was Operation Warp Speed, which helped develop the very vaccines that do it.

          But, I’ll ask again.

          Is your argument that the government has the power to do whatever it wants in order to stop COVID?

          Or, perhaps, it doesn’t have the power to do some things, even if they may stop COVID spread.

        3. MollyGodiva:
          Lets turn it around and ask “What government measures would the Rs accept”?

          Well, to start with Molly, “the Federal Gov’t” is not “the Gov’t”

          There’s State and local governments. Which are where most of the proper actions should be taken.

          Have you heard of the concept of “enumerated powers”? Or does the US Constitution just mean nothing to you?

        4. MollyGodiva:
          Lets turn it around and ask “What [Federal] government measures would the Rs accept”?

          So, having edited the question to make it at least somewhat rational, let’s answer it:
          1: Preventing anyone from crossing the US Border without a recent negative Covid test.
          Which requirement the US imposes on US citizens, but the Democrats / Biden* Admin does not impose on illegal aliens it catches at the southern border.

          2: Not letting any Covid-infected non-US Citizens into America.
          The Democrats / Biden* Admin have that one flipped. If you’re a US Citizen you can’t come in if you have Covid. but if you’re an illegal alien with Covid, they’re happy to bring you in, and drop you off in an American city where you can infect other people

          3: Operation Warp speed, paying to build manufacturing facilities for vaccines that haven’t yet been tested, so that if they pass the tests, we can immediately start producing the vaccines in mass quantities.
          Ah, President Trump did that one. So of course the Democrats, including both Biden and Harris, opposed it.

          4: Making the vaccines freely and widely available to anyone who wants to take it.
          We do that

          Anything else?
          Well, let’s make it simple: I’m opposed to any Covid restriction/requirement being imposed on US Citizens, that is not first imposed on any non-US Citizen trying to get into the US / in the US.

          Because so long as your side is prioritizing “bringing illegal aliens into the US” over “stopping Covid”, you have nothing worthwhile to say abotu Covid

        5. MollyGodiva:
          Lets turn it around and ask “What government measures would the Rs accept”?

          Here’s a basic starting point:
          It’s been over 18 months since Covid hit. This is not an “emergency” of the sort that “emergency powers” were created for.

          So I won’t accept any gov’t Covid response that is not based on a law that clearly empowers a government to make that response.

          Which means you all are going to have to get new laws passed if you want to do anything. And if you can’t get those laws passed, because your ideas are so stupid that no one else wants anything to do with them, the rule of law means you don’t get to do those things.

          And if you won’t accept that, you are authoritarian scum, and I’m morally required to resist anything and everything you try to do

    6. So the government has the power to stop the spread of deadly infections. How far can they go?

      They could declare martial law and institute a stay at home or be shot order. That would shift the vaccine down cold. Why haven’t they done that? By your definition Biden must be a Covid lover.

      1. A quarantine of the infected seems well within the power of the government. A quarantine of the unvaccinated seems a logical extension but would be viewed as overreach by many. Summary execution for quarantine violators would raise 5th and 14th Amendment concerns.

    7. “In any sane world, it would be obvious that the government has powers to stop the spread of deadly infections”

      You mean like Ebola?

      Are you 12? Do you not recall the fights about health care workers bringing Ebola back to the US during the Obama Admin, and how little the Federal Gov’t could do to quarantine them?

      Actions and precedents have consequences

    8. “In any sane world, it would be obvious that the government has powers to stop the spread of deadly infections”

      State governments do have that power.

      The Federal Government, when does not have general police powers, does not.

      You don’t like the way your State is handling Covid? Move to a different one.

      Stop being a totalitarian bully.

      It’s not like you can claim the authority of some “experts” who have demonstrated that they actually know what’s going on, and can offer good advice. Because if such people exist, they yet to receive national prominence.

      And certainly the Biden* Admin has not displayed any such competence

    9. “Every single effort has been fought tooth and nail as if it was a dire threat to fundamental liberty. Masks-sued over, social distancing-sued over, vaccines-sued over.”

      Vaccines opposed? Ah, you mean like these comments from members of hte Biden* Admin?
      https://pjmedia.com/instapundit/473268/

      Mask mandates opposed? Why yes, we do follow the science, rather than hysterical pronouncements from know-nothing buffoons
      https://pjmedia.com/news-and-politics/rick-moran/2021/08/26/large-cdc-study-doesnt-support-mask-mandates-in-schools-n1472805

      Where do you live? What is your State government doing about Covid? Stop bitching about everyone else, and deal with your own neighborhood

  2. #1 most effective way to prevent anyone catching the virus from you is to get the virus, and then to survive it. Recovering from the virus is typically sterilizing. The three novel experimental treatments, now considered “vaccines”, due to a FDA redefinition a couple weeks ago, not yet FDA approved, and only available under EUAs, are far from sterilizing. That means that you can get vaccinated, get the virus, and pass it on.

    Those with natural immunity, from having survived the virus, are still required by the Biden Administration to be vaccinated with these experimental treatments. Arbitrary and capricious?

    1. Why do legitimate academics (Jonathan Adler, Orin Kerr, Ilya Somin, perhaps a couple of others) continue to associate with a blog that attracts — cultivates — these fans?

      The belligerent ignorance and diffuse bigotry (racism, xenophobia, misogyny, superstitious gay-bashing) should be enough to disgust any decent, modern, educated person.

      Did you guys genuinely study, write, think, and strive to become associated with an archaic White, male blog that appeases and lathers the least among us? I am confident that each of you could readily find an outlet of which you could be proud, rather than one that makes you avert your eyes at faculty meetings and professional conferences, hoping none of your colleagues mentions this shit-rate blog.

      1. I dunno Kirkland. By the same token, why do they associate with a blog that attracts hateful bigots like you?

    2. not yet FDA approved

      I mean, your stupid made-up talking points aren’t even true. Pfizer was FDA approved weeks ago.

  3. You could have made this shorter. The answer is “yes.” They are not entitled to put their patients’ health in danger at federal expense when it can be prevented by vaccination.

    1. If the medical community is opposed…perhaps we should be asking why.

      1. The medical community is united in favor of vaccines. Those opposed are fringe partisans.

        1. “Those opposed are fringe partisans.”
          Again you start with a correct statement about the medical community in the US and bridge to your own brand of fringe partisanship.

          1. You keep sticking up for the lethally reckless, ignorant gape-jaws, Don Nico. It suits you. Our vestigial clingers need to stick together.

        2. You say things like this, when a significant chunk of the medical professionals are resigning instead of getting vaccinated?
          There was an article this week about a New York city hospital that had to shut down one ward because 30 staff resigned rather than accept the new vaccine mandate.
          A few weeks ago, there was a hospital that lost almost 100 staff for the same reasons.
          A Houston hospital lost 150 over their vaccine mandate back in June.
          A Virginia hospital system lost 50 in August.

          This is only a few percent of the total medical staff – but this is a few percent that are willing to lose their jobs rather than comply.

          This sort of “Scientists are United ™!” is a bizarre appeal to authority, rather than a meaningful argument. Pointing to actual studies and reports of vaccine effectiveness is a useful argument; tribal rancor is neither.

          1. “tribal rancor is neither.”
            Yet that is what we see with pro-mandate folks going so far as to say that unvaccinated persons should be refused a bed in the ICU.

            1. I understand why reckless, ignorant people would dislike accountability . . . and I don’t care what they think.

            2. I don’t care what Artie thinks. I has shown himself to be mean-spirited on myriad occssions

          2. There was an article this week about a New York city hospital that had to shut down one ward because 30 staff resigned rather than accept the new vaccine mandate.

            Nope. You’ve managed to get every fact wrong and draw the wrong conclusion.

            1) It was not New York City; it was in Lowville, New York.
            2) The 30 people who resigned were not “medical staff”; only about 2/3 were.
            3) The maternity ward put deliveries on hold temporarily because 7 of those 30 were from that ward.
            4) It was not “the new mandate,” but one announced months ago, that they wouldn’t comply with.
            5) The 30 who resigned comprised less than 5% of the hospital’s workforce.

            A Houston hospital lost 150 over their vaccine mandate back in June.

            Which was 6/10ths of 1% of their 25,000 strong workforce. Not a “significant chunk.”

        3. The medical community is far from United in this regard. Keep dreaming. Indeed, much of the medical field is apparently much better read on the subject than you, and are resisting vaccination for themselves with non FDA approved novel therapies. That is why these novel vaccines are only available through EUAs – to bypass the otherwise required FDA approval of the vaccines.

          1. Pfizer is no longer under an EUA, it has been fully approved by the FDA. That is why the mandates are being instituted now.

      2. I agree, if the medical community were opposed to mass vaccination that would be an excellent reason to question whether it was a good idea.

        Were you implying that the medical community is, in fact, so opposed?

    2. Syd Henderson babbles:
      “They are not entitled to put their patients’ health in danger at federal expense when it can be prevented by vaccination.”

      But it can’t be prevented by the current Covid “vaccines”.

      People who’ve had the Covid “vaccines” can catch Covid. They can be symptomatic or asymptomatic, and in either state they can infect other people.

      So “getting vaccinated” != “protect other people from you giving them Covid”.

      Therefore, whether or not the gov’t has that power is irrelevant in this case, since in this case that power doesn’t apply.

      Care to try again?

  4. How many health care providers really want to forgo vaccination mandates? Most likely had them even before the Biden Administration mandate.

    1. If so, then how are roughly half of American health care workers unvaccinated and still working?

  5. It is utterly astonishing that requiring vaccination of health care workers is controversial. Who the hell thinks that’s a bad idea?

    WTF is wrong with people?

    1. They are disaffected.

      They are antisocial.

      They are bitter.

      They are ignorant.

      They are stupid.

      They are reckless.

      They are grievance-consumed.

      They are obsolete.

      They are misfits.

      They are science-disdaining, superstitious rubes.

      They are Republicans, conservatives, and clingers.

      (This list is not intended to be exhaustive).

      1. A lot of it is political. Most Trump supporters realize, consciously or unconsciously, that Trump lost because of the virus and that the results of Pfizer’s clinical trials were withheld until after the election. Many are unwilling to give Biden or the Democrats any kind of a “win” on the virus, even at the cost of risking their own health and lives.

    2. bernard,
      why do you dismiss naturally acquired immunity through previous infection especially as the disease is becoming endemic and is mutating into variants that are increasingly successful at evading vaccines that are specifically designed to detect the receptor binding domain of the spike protein?
      Half the science is deliberately ignored.

      1. Don,

        Where did I dismiss it?

        1. By implicitly supporting the Biden mandatory vaccination orders, which require vaccinations for those with natural immunities.

        2. By implying that previous infection makes vaccination unneccesary.

          1. I think you meant that I implied that we should ignore natural immunity when requiring immunization.

            First, I didn’t.

            Second, if we have convincing evidence – more than one not-yet-reviewed study – that it is as good or better than the vaccine, and we can establish a way to actually document previous infection, then I’m fine with taking that into account. (Though my reading suggests that we do know that vaccination benefits even those who have been infected, so they may want to go ahead anyway – I would.)

            Third, that whole issue is a red herring. Given that there are health care workers who have not been infected, should we require them to be vaccinated? Looks like a slam-dunk to me.

            1. bernard,
              There is more than one study. Moreover, you do not need a study. If serology measures titres comparable to or greater than those induced by a vacation, the person is as immunized as s/he is going to be.
              The only issue is that CDC does not want to “undermine” the Administration’s vaccination campaign.
              This is not a matter of studies or opinions, but of properly conducted scientific measurement. Anything else is politics.

            2. Bernard,
              In addition I did not say that YOU ignored infection acquired immunity. I said the the US government agencies are ignoring infection acquired immunity.
              I agree that vaccination seems to improve the titre level of previously infected persons, but does that imply greater immunity to variants other than the wild-Wuhan strain is not known.
              I have posted several times that my son received both Pfizer does and showed no antibodies in serology. So one has to be careful with assessing what is greater immunity. Still there is NOgood reason to ignore a positive serology test.

              1. There is no way that you son tested negative for antibodies on serology tests after administration of the Pfizer Vax twice.

                The mrna vax causes expression of spike which necessarily results in antibodies – fact – unless one argues that what was administered was adulterated.

                The regulatory agencies and institutions which oversee the distribution and content of the vax via random sampling and testing of the products pursuant to a published protocol show that the vax is consistent with the non proprietary publicly disclosed ingredients and manufacturing specifications.

                1. What an arrogant fool that you are.
                  How the hell would you know?
                  I have my son’s full health records health records including doctors’ notes and all records of an extensive series of clinical tests to uncover the source of his adverse side reaction. Those tests specifically include a antibody serology test at the request of my daughter also a physician.
                  So STFU about things that you are completely ingnorant about.

                2. I should have added no tests are 100% accurate. So maybe his serology tests was faulty or maybe his physician was correct that sometimes the tests actually get null readings even in the presence of immunity.
                  And you needn’t tell me that both of the mRNA vaccines were tailored with respect to the receptor binding domain of the spike protein. I know that

    3. “Who the hell thinks that’s a bad idea?”
      Apparently some health care workers.

      “WTF is wrong with people?”
      Perhaps they would like to actually have the freedom to choose…or not to choose?

      1. I guess the patients aren’t entitled to any protection at all from these fools. Besides, they have a choice, get vaccinated or find work that doesn’t put them in close contact with vulnerable populations.

        Look, A.L., this whole “controversy” is ridiculous. It’s been drummed up by fools, ignoramuses, and scoundrels – partly out of ignorance, partly out of political partisanship, partly out of greed and ambition.

        We are are not talking about major surgery, or even minor surgery, here. It’s a brief stick in the arm. People just need to grow up. The resistance is mind-boggling.

        1. Not disagree with your point broadly, but your “aren’t entitled to any protection at all” comment isn’t accurate. Vaccinated or not, healthcare workers are gowned and gloved as usual, plus they’re wearing the N-95 masks. And frequently they’re wearing face shields as well.

          I know this because of my three (vaccinated) children that work in healthcare.

      2. Perhaps they would like to actually have the freedom to choose…or not to choose?

        They do have the freedom to choose. Vaccines, testing, or unemployment. What they want is to not be required to make a choice.

        1. So you have no problem with rmployers firing employees who have AIDS?

          1. I presume you mean firing them because they have AIDS.

            Assuming such, I don’t know what “have no problem with” means; hard to see a good reason for such a policy unless the employer is an adult video company or something. But of course I think employers should have that right.

            But I don’t see what that has to do with the fact that employees here are given a choice.

  6. Let’s try it another way:
    Due to the increase in crime rates, the CDC declares a health emergency, and citing several already completed studies, determines that armed law abiding citizens are a cure for the disease. Therefore they dictate that Employers with more than 2 employees must purchase an AR-15, 4 20 round magazines, and 600 rounds of ammunition for each employee that meets the militia definition on the US Constitution. Each militia member is required to have the weapon accessible at all times except at home if children under 16 are present.
    Is that one OK?

    1. And what is this “militia definition” in the Constitution? All I see is that it needs to be well regulated.

      1. Which clause is the predicate, justifying, but not limiting, the operative clause, guaranteeing the right to keep and bear arms (RTKBA). The “well regulated” means that one of the reasons for the RTKBA is to make sure that the citizenry had the necessary skill with firearms to be effective, through practice, if called out as the militia to defend their community.

      2. even further off point

    2. Pretending you constructed a better hypo:

      I don’t see any particular reason why an OSHA regulation couldn’t require certain types of employees to be armed. Do you?

    3. Actually good analogy. Politicians can now declare anything an emergency and unilaterally suspend the constitution.

      And all of ever so smart legal Eagles like Adler debate each step in this assuming yes it’s understood the constitution can be indefinitely suspended by executive fiat.

      But there is no suspend the constitution clause in the constitution

  7. It depends. If they are working with terminally ill old people yes that could be prudent. But a blanket mandate covering some guy sitting in his room banging at the computer is stupid.

  8. Why is this even an issue? Why are *any* health-care workers refusing vaccinations? If they’re health-care workers, they’ve listened to the science and they know vaccines are awesome.

    1. I would be surprized if most hospitals were not requiring vaccination or exemptions for medical reasons months ago

      1. Many were not because they were waiting for full FDA approval. Now that Pfizer was it, that’s why it’s happening now.

        1. Could be, but even before that the hospitals were risking significant liability by not having such requirements. Certainly many federal workers were under such mandates prior to full FDA approval of the Pfizer vaccine.

  9. “I would also expect the judicial review of such decisions to be quite deferential.” – seems to me that this is the long-held standard.

    The judiciary seems to operate on the ridiculous myth that Congress makes the laws and the Executive enforces them, in which realm the judiciary’s job is to stay out of the fracas as much as possible.

  10. No..Corn Pop doesn’t have the authority to do this..end of story

  11. To Nico:
    From: Structured Chaos
    September.12.2021 at 8:52 pm

    I take back my comment as set forth below in quotes. It may in fact be that a negative serology for antibodies is reported though vaccinated recently.

    “There is no way that your son tested negative for antibodies on serology tests after administration of the Pfizer Vax twice.

    The mrna vax causes expression of spike which necessarily results in antibodies – fact – unless one argues that what was administered was adulterated.

    The regulatory agencies and institutions which oversee the distribution and content of the vax via random sampling and testing of the products pursuant to a published protocol show that the vax is consistent with the non proprietary publicly disclosed ingredients and manufacturing specifications.”

    1. Thank you for the correction. I appreciate it.
      Best wishes.

  12. As Timothy Bella reports in the Washington Post, health care workers are already allowing their employers to dismiss them due to failure to submit to vaccination. It’s a win-win: the health care workers still receive unemployment benefits and, at some point, may even receive a bonus for applying for re-employment!

    I know I sound like a broken record, but essential employees hold the reigns — and at this point most have no qualms about puling them with a hearty “Screw Biden’s Mandate.”

    1. It does depend on state law, but in general if you refuse to get vaccinated and are fired for it, then you are fired for cause and thus ineligible for unemployment. Obviously it is too early for cases to be adjudicated but the employment lawyers expect many to be found ineligible.

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