Is The Threat of Termination For Failure To Get Vaccinated Irreparable Harm?

Justice Gorsuch said yes. Justice Barrett may have thought no.

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In John Does 1-3 v. Mills, three Justices would have enjoined Maine's vaccine mandate. Justice Gorsuch wrote that the workers faced an irreparable harm: receive the vaccine, or be terminated from their employment. Justice Barrett's concurrence did not even mention the threat of irreparable harm. After my post, several colleagues wrote that Barrett may not have mentioned that factor because it was obviously not satisfied. Specifically, if a person is wrongfully terminated, a court can later order reinstatement, backpay, and restoration of other benefits (such as seniority). The worker can be made whole. I had planned to revisit that issue, after giving it some more thought.

On November 8, a federal district court in Texas declined to enjoin United Airline's vaccine mandate. (As chance would have it, I write this post aboard a United flight). The court found that the threat of being placed on unpaid leave was not irreparable harm. The judge advanced the argument that may have undergirded Justice Barrett's dissent. No one was actually forced to receive the vaccine; rather, employees could choose to comply with their religious scruples, but forgo their livelihood.

It is undisputed that United exempted Plaintiffs from the vaccine mandate. Plaintiffs, therefore, have not been denied the freedom to exercise their religious beliefs. Indeed, by declining to receive the vaccination, they have acted in accordance with their religious beliefs. So, again, Plaintiffs' grievances lie with United's response to their decision.

The court acknowledged that there are many collateral consequences to losing benefits, that cannot be restored through court order, such as health insurance and medical treatments:

Plaintiffs also claim that the secondary effects of lost income—loss of housing, health care, possible loss of educational and employment opportunities, and psychological harm—are irreparable. Pls.' PI Br. at 17–18. Mr. Castillo testified that he lives paycheck-to-paycheck and that he will face homeless if United places him on unpaid leave. PI Hr'g Tr. Vol. II, 90:4–10. Ms. Hamilton testified that, if placed on unpaid leave, she would lose the income and medical insurance that currently fund her husband's cancer treatment. See id. at 48:5–50:2. Similarly, Ms. Jonas testified that she will be unable to provide necessary healthcare for her disabled husband without the income and medical insurance provided by her employment with United. Pls.' TRO App'x at 26, ECF No. 7. Mr. Sambrano argues that, if placed on unpaid leave, he will need to evaluate how to pay for his child's college education and whether his family will need to consider alternative education options. Id. 

But these costs, the court found, still were not irreparable:

The Court is not insensitive to Plaintiffs' plight. A loss of income, even temporary, can quickly ripple out to touch nearly every aspect of peoples' lives, and the lives of their families and dependents. But the Court's analysis must be guided by the law, not by its sympathy.

Fast-forward to Friday evening. The Fifth Circuit enjoined the OSHA vaccine mandate. And the panel found, with very little difficulty, that the employees faced an irreparable harm--even though the mandate operates on employers:

It is clear that a denial of the petitioners' proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s). For the individual petitioners, the loss of constitutional freedoms "for even minimal periods of time . . . unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").

After some reflection, I don't think the vaccine mandate cases can be viewed in the same light as traditional employment dispute. In a conventional case, an employee allegedly violates some company policy, and is terminated. At that point, the employee claims that the justification for termination was pretextual, or was retaliation for protected activity. And, if, after lengthy litigation the employee is proven correct, the court can order reinstatement, backpay, restoration of benefits, etc. Or in another conventional case, a worker violates some government regulation, and is terminated. At that point, the employee claims that the regulation itself is ultra vires, and thus the termination was unjustified. Once again, after lengthy litigation, the employee could be made whole.

The vaccine cases seem different. Generally, worker are terminated for failing to comply with some rule at the workplace. Or, their conduct outside the workplace spilled over to the workplace--for example an employee came to the office drunk. But the vaccine mandate cases requires workers to receive a shot that, according to their claims, inflicts an irreparable injury to their conscience. The injection cannot be uninjected.

The plaintiffs in the United case raised this argument:

Plaintiffs first argue that "United has put its religious and disabled workers in an impossible position—take the COVID-19 vaccine, at the expense of their religious beliefs [or face indefinite] unpaid leave." Pls.' PI Br. at 16, ECF No. 37. Because the vaccine cannot be removed from their bodies, an individual who chooses to get the shot cannot undo that choice.8 Plaintiffs argue that acquiescing to United and getting the vaccine in violation of their beliefs will cause irreparable harm.

However, the district court rejected the argument:

This argument, however, conflates the potential harm arising from United's accommodation policy with the personal difficulty of deciding to decline the vaccine. United exempted Plaintiffs from the vaccine mandate; Plaintiffs were not required to violate their religious beliefs. United's employees claimed they faced an impossible choice: get the vaccine or endure unpaid leave. But they have chosen the chose the latter. Their dispute thus centers on United's response to their choice.

This position may work in the context of a private employer, enforcing a private policy. But I do not think it works for a public employer, or alternatively, a private employer bound by a governmental mandate.

The sort of choice faced by these workers resembles that faced by Adeil Sherbert: work on Saturday and receive unemployment benefits, or rest on the Sabbath and forgo unemployment benefits. Under a RFRA regime, the former choice would yield irreparable harm. Again, I am not sure this argument governs disputes with the enforcement of private rules in light of longstanding precedent.

In this novel context, perhaps a better interim remedy would be to put the workers on paid leave, with all relevant benefits accruing until the litigation completes. Or, let the workers engage in 100% telework, such that they are excused from the mandate. The workers would not be in the workplace, and thus would not risk spreading COVID. If, at the end of the case, the workers lose, the employer could attempt to claw back the backpay. Such collections may be difficult, if not impossible. But when dealing with religious freedom, the courts can err on the side of conscience, while still avoiding potential harms to other workers.

NEXT: #FedSoc2021 and Dobbs

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  1. Well perhaps the court can make it clear that back wages, and damages are on the table, and that is why workers wouldn't suffer irreparable harm.

    That may change the calculus for employers that want to fire unvaccinated employees.

    1. "Well perhaps the court can make it clear that back wages, and damages are on the table, and that is why workers wouldn't suffer irreparable harm."

      Is this actually realistic for most people? Sure, if you happen to have enough savings that your life can continue as usual through a year or two of loss of income, back wages will make you whole.

      If you don't, in the mean time you lose your house, serious illnesses go untreated, children have to drop out of college... Your life is irreversibly altered, and generally for the worse.

      Maybe the legal community don't understand this because lawyers tend to be paid way above the average income of Americans?

      1. I think this points at the logical flakiness of the concept of "irreparability."

        Obviously as a matter of reality, no kind of ex post facto repair can make you whole in respect of experiences and opportunities that have passed by. Thus if you lose your job or pay, so that you can't fly to your grandma's funeral, that's gone. You might, ex post facto, get a check for $500 in compensation, and you might or might not feel that you have been adequately compensated. And you're more likely to feel adequately compensated, the more the damage inflicted on you is narrowly financial, and not big enough to really hurt you, while you're waiting for compensation. Between missing grandma's funeral and Bill Gates having to wait a couple of year''s for $50 million compensation for some financial damage, there will be lots of middle ground - eg that long saved for vacation in Maui with the kids that you missed out on, and now they're older and they dont want to vacation with their parental units.

        It seems that irreparabililty is, legally, sorta kinda the idea of not adequately compensatable by money. So not really repair but compensation. But whether the compensation is adequate is in the eye of the beholder. Missing grandma's funeral may be $500 worth to someone, but inconsolability to someone else. We don't even need to get to more obvious examples like your husband dying because the health insurance has been turned off. And even dead husbands vary quite a bit on the inconsolabilty scale.

        I'd guess that in most cases where there is an employment relationship involved, a residual uncompensated anger remains and is not repaired.

        I presume the courts have doodled out some sort of guidelines for irreparability, but seeing as the whole concept seems to be fatally flawed as a matter of logic, I doubt the guidelines are coherent.

        1. It isn't irreparable harm that you might guess wrong on what the Court might do. A discrimination plaintiff may also guess wrong and end up out of a job.

          1. But here, there is no irreparable on the defendants side.

    2. However, what about the meantime? How many years will it take to win the case? I know my mortgage won't wait five years for payment on the chance I win a lawsuit.

      And that's if you win. The Texas case today is indicative of many prominent cases recently, where law and logic are tossed out the window for politically preferred rulings. So you could forgo years of wages and work tirelessly on a lawsuit for it to blow up in your face. And we are talking thousands of employees

      The threat of termination is for all intents and purposes irreparable. To pretend otherwise is laughable

  2. Most people would agree that causing death to another person is irreperable harm but it is understandable that many people place their deeply held religious beliefs ahead of the welfare of others. Of course the rest of us feel that deeply held religious beliefs cause one to place the welfare of other ahead of one's own selfish, political, self serving actions, but that may be a misinterpretation of Judeo/Christian theology.

    As for this statement from the post,

    "This position may work in the context of a private employer, enforcing a private policy"

    it seems Prof. Blackman recognizes the right of private employers to control the health and safety and working conditions of their workplace. Welcome to our side, the conservative side Professor.

    1. Aw, just shoot them in the leg if they won't go along. Enough of this 'individual rights' nonsense.
      The vaccine protects us all, except if we have been vaccinated, not from the unvaccinated, who are trying to kill us, even when we wear masks.

    2. I remain puzzled by the claim that a vaccine requirement substantially burdens religious beliefs. Suppose a believer gets a vaccination when he would prefer not to do so. Does he believe anything differently as a result of getting the injection? Is he any less free to worship in the same manner as before?

      Is simply saying I really, really, really don´t like it sufficient to show a substantial burden?

      1. Eat pork, you unbeliever!

        1. I am. Pasta with meat sauce containing pork. It is delicious.

      2. The "vaccine" (it's not a vaccine, it's experimental genetic modification) contains fetal tissue from aborted fetuses.

        1. Not true. See, e.g., https://apnews.com/article/fact-checking-529913215948

          Even if the vaccines were tested decades ago with fetal cells, where is the present day burden on vaccine recipients?

          1. There are vegans who won't eat lab grown meat, even if the cell line was harvested humanely from an animal running the plains of the west. It's the provenance chain.

            1. Indeed, crazies abound everywhere

        2. Seriously, like do you get a kick out of spreading obviously false information?

          This is beyond difference of opinion. Even if you have concerns about the vaccine, or oppose the mandate, what you said is completely false.

          1. What in particular do you dispute? Please be specific.

            1. Please disregard my question. I mistakenly thought your reply was to my comment.

          2. J&J contains fetal cells, Pfizer and Moderna used fetal stem cell lines in R&D. Many religious people still object to that.

            1. J&J contains fetal cells,

              No.

        3. KM,
          You spread a vicious LIE. Shame!

      3. I remain puzzled by the claim that a vaccine requirement substantially burdens religious beliefs. Suppose a believer gets a vaccination when he would prefer not to do so. Does he believe anything differently as a result of getting the injection? Is he any less free to worship in the same manner as before?

        I am puzzled at your puzzlement, though it does seem to be one shared by many areligious people. The first amendment and RFRA, protect — and people are concerned about — the exercise of religion, not "beliefs." Until Bill Gates perfects his mind controlling vaccine microchips, nobody can ever force anyone to believe anything, so that's not the issue. Religious exercise is not limited to the things you think or going to church/temple/mosque once a week and chanting certain things. Forcing someone to act in a way forbidden by his or her religion¹ (or forbidding someone to act in a way required by his or her religion) burdens his or her religious exercise.

        ¹I reiterate that anyone who claims that covid vaccination violates his beliefs is lying. But that's irrelevant to the question you asked.

        1. That is a good point = it is free exercise that is protected

          David, let me ask you this. I am paraphrasing...In a previous exchange over Jacobsen, you pointed out to me that that a state (under its police power) can compel vaccination by passing a law to deny employment to the unvaxxed as a way to compel vaccination. You also said that the state cannot hold you down and jab a needle into your arm against you free will.

          Where is the line of compulsion? How far may a state go, short of strapping you down and jabbing a needle into your arm, to compel a citizen to vax?

          What are your thoughts on that?

          1. Commenter_XY, I don't know how David would answer your question. My answer would be that maybe you ask the wrong question.

            I do not see the state as having power to compel vaccination. I see the state as having power to police avoidable contagion. On that basis, think of all the measures the state might resort to in an extreme emergency, and then posit a vaccine you could take of your own volition to avoid being subjected to those alternative measures.

            1. Think of all the measures the state might resort to in an extreme emergency, for example relating to espionage, and then posit a promise not to speak about certain subjects that you could make of your own volition to avoid being subjected to those alternative measures.

              That would be rightly forbidden as a trade that the government could demand, because both the end and the means must be proper.

          2. ..a state (under its police power) can compel vaccination by passing a law to deny employment to the unvaxxed as a way to compel vaccination. You also said that the state cannot hold you down and jab a needle into your arm against you free will.

            This is a bit of a confusion between "force" and "coercion"

            The holding you down and jabbing you is force. The nasty things will happen to you unless you consent to be jabbed is coercion. In normal usage force is often used to include coercion, but they're not quite the same thing.

            1. No one is holding anyone down Lee. A person can decided to live with the consequences of his/her craziness

          3. In a previous exchange over Jacobsen, you pointed out to me that that a state (under its police power) can compel vaccination by passing a law to deny employment to the unvaxxed as a way to compel vaccination. You also said that the state cannot hold you down and jab a needle into your arm against you free will.

            I'm not actually sure that I exactly said those things. As to the former, Jacobson says that the state can make it a crime not to get vaccinated. If someone is convicted of a crime, all sorts of punishments, from fines to jail, are available, but I'm not sure "You may not be employed" would be one. But there are ways to get close to that end.

            As to the latter — forcible vaccination — what I've said is that Jacobson doesn't authorize that. I don't know that a state could never do it — although I would think that for it to be permissible, the circumstances would have to be far more dire than covid. The problem a state trying to enact such a policy would encounter is that it would have less severe means to accomplish its goals, such as an enforced quarantine. So forcible vaccination would run into Rochin's "shocks the conscience" limitation.

            Where is the line of compulsion? How far may a state go, short of strapping you down and jabbing a needle into your arm, to compel a citizen to vax?

            I think I sort of addressed that above. There are two tracks, civil and criminal. On the criminal side, the state can throw people in jail for refusing to get vaccinated; that's pretty serious compulsion. (And once in jail, the state can put people who refuse to get vaccinated in solitary, to keep a disease from spreading.) On the civil side, the state take non-punitive (in the technical sense) measures just as we've seen like full quarantines or restrictions on movement (such as barring unvaccinated people from non-essential venues), barring people from physically attending schools, requiring masks and regular testing, etc.

            1. Wow....This was a great answer....very thorough. I learned things, David.

        2. Well explained.

    3. it seems Prof. Blackman recognizes the right of private employers to control the health and safety and working conditions of their workplace.

      Wouldn't an employer policy requiring vaccination just fall under the general "employment at will" doctrine?

      1. Some people view (claimed) superstition as a magical superpower, sword and shield, overriding reason and generally applicable law. Society currently appeases these often disingenuous clingers, sometimes enabling the clingers to benefit from a 'heads we win, tails you lose' standard; religious claimants can discriminate against everyone else, but no one can discriminate against the superstitious.

        Time seems destined to sift this in a manner that favors reason and equality over superstition and unearned, special privilege.

        1. Realize the problem is unrestricted democracy, not the pretexts the power hungry use to achieve power.

          1. "We love democracy, until we don't. Then we run off to the courts." Your beef seems to be the right, as usual, is playing a game of catch up to the left's tricks, and you don't like it.

            Learn that it is the tricks that are the problem.

      2. I'm sure blacks who get fired for discrimination agree that it's not a big burden

      3. Bernard,
        I think that the rejoinder from the employee is that they are fired for an illegal reason, discrimination on the basis of religion.

      4. Except that this isn’t really a company policy, but rather a Federal government mandate?

    4. I wish I could get a scientific exemption to avoid this vaccine.
      Whether vaccinated or not, the probability of transmitting or not transmitting the virus is the same.

      https://www.bloomberg.com/news/articles/2021-10-28/getting-vaccinated-doesn-t-stop-people-from-spreading-delta

      https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(21)00648-4/fulltext

      1. L_NV,
        "probability of transmitting or not transmitting the virus is the same."
        You have to read the articles critically.
        The Lancet paper refers to transmission in the household setting in which people are very close for long periods of time taking no prophylactic measures.
        That is very different from transmission in a a non-intimate setting.

        1. Transmission is much easier in an intimate setting.

  3. The above began as promising, be seems to be a position without taking a firm position.

    How, ever, in the history of humankind could mandated bodily injections and enforced de jure or de facto genetic modifications be considered enlightened, healthy, and just?

    1. How, ever, in the history of humankind could mandated bodily injections and enforced de jure or de facto genetic modifications be considered enlightened, healthy, and just?

      Since at least the Revolutionary War, if my memory of General Washington's smallpox vaccine mandate is correct.

      1. That mandate applied to troops in time of war. Don't you think maybe that's significant?

        1. Vaccines have been required with respect to elementary school (and older) students for at least 150 years.

          The only thing new here is the antisocial bellyaching of disaffected clingers -- and the Federalist Society's inclination to appease the knuckledraggers by expanding special privilege for those who claim to be superstitious.

    2. To what enforced de jure or de facto genetic modifications do you refer? Please be specific.

      1. The "vaccine" made and marketed by Pfizer, Moderna, and J & J is NOT a vaccine, it is experimental genetic modification.

        1. Do you have anything other than ipse dixit assertion supporting that claim?

        2. Do you have anything other than simply ipse dixit assertion supporting that claim?

        3. KM,
          Where do you get such blatant nonsense?
          Or is your intelligence actually that low?

        4. The "vaccine" made and marketed by Pfizer, Moderna, and J & J is NOT a vaccine, it is experimental genetic modification.

          1) It is a vaccine.
          2) It is not experimental.
          3) It does not in any way involve genetic modification.

          1. Apparently not for legal purposes, Nieporent. For legal purposes you can religiously believe the opposite of each of those. Then, under RFRAs government has nothing to say about it. Which is terrific, because that means a RFRA puts in the hands of each individual an all-purpose right* to stay the hand of government, regardless of law or policy.

            *At least until government gets over a high bar, if you decide to sue. And best of all, that high bar includes a provision that the result of one case cannot as a practical matter become dispositive of the outcome for another. Each religionist gets his own power to sue for narrow tailoring, based on his own set of particulars.

            1. Stephen,
              What one believes does not change ground truth. Delusion has nothing to do with RFRA.
              We are not talking about religion here; we are talking about derrangement

              1. Right. Courts may not weigh in on whether a religious belief is permissible when the court has to interpret the religious belief. Doing so likely violates the Establishment Clause. However, courts can determine non-religious facts and apply those facts to a stated belief. So, if a person claims a religious objection because the vaccine was made by Moderna, the court cannot reject that claim on the basis such a belief makes no sense. On the other hand, if the objection is because the vaccine was made on Mars, a court can reject that claim.

          2. 1. It is a leaky vaccine.
            2. It is still in its infancy and we don't know the long term side effects.
            3. A recent study conducted concludes that the spike proteins generated due to the vaccine can enter the cell nucleus and impair DNA repair.

            https://www.mdpi.com/1999-4915/13/10/2056

            SARS–CoV–2 Spike Impairs DNA Damage Repair and Inhibits V(D)J Recombination In Vitro

            1. Liberal_NV,
              Go back and read that paper again. It is the virus that can inhibit DNA repair. That the vaccines exploit the characteristics of the full length spike protein does not mean that the antibodies produced carry the full length spike protein. The authors acknowledge out of an abundance of caution that there could be a mechanism by which the DNA repair mechanism could be affected. However, for every person who contracts COVID-19 however mild, that mechanism is operable. For everyone covid-recovered person vaccinated they have no additional risk.
              I'd add the the research needs replication, that it is a report of in vitro rather than in vivo study and that the authors acknowledge that"the mechanism by which SARS–CoV–2 impedes adaptive immunity remains unclear. "
              In the end all these decisions are prudential and matters of balancing risks.
              Thank you for the citation,
              although I don't think it is an adequate excuse for refusing vaccination, and it certainly is not a reason of religion for denying vaccination

            2. That's an oversell about what the study concluded. The study found that the SARS-CoV-2 spike protein had that type of effect in in vitro cells. It drew no conclusions about vaccines, nor did it find that it had this effect in actual patients. But setting that aside, the effect it is investigating is not "genetic modification."

          3. It’s only a vaccine because the FDA redefined it as such this last summer.
            100% of the vaccines being given are only available to the public under Emergency Use Authorizations. They have not undergone standard FDA vaccine testing (hence availability under EUAs). Indeed, I would ask how much actual testing have they undergone? How long were the tests? And how many previous uses were there of this technology for creating vaccines?

            1. Pfizer was approved months ago. It is not under EUA. Please update your talking points.

              You of course know how long the tests were, and they have gone several billion doses worth of testing.

          4. Incorrect. These are not vaccines, per se, in that they cannot prevent the infection and spread of the China virus. All except Comirnaty are under an EUA, which gives everyone the right to refuse to receive the so-called vaccine under existing law. The vaccines are indeed genetic modifiers.

            1. Wrong as usual Mr Pig

    3. "How, ever, in the history of humankind could mandated bodily injections and enforced de jure or de facto genetic modifications be considered enlightened, healthy, and just?"

      Get an education, clinger. Backwater religious schooling does not count.

      For that education, focus on history and science, particularly with respect to vaccines. Legitimate schools have been requiring vaccinations for more than 150 years,

    4. There are NO genetic modifications being made.
      None.
      Nada.

  4. Clearly time to join a church.

    Kind of like incorporating, one is not considered a full human capable of addressing all privileges of citizenship without one now.

    1. Problem is all full-on and pseudo-governmental agencies, such as the CDC, are now technocratic churches of our futurism and considered to be sacrosanct, as such.

      1. "pseudo-governmental agencies, such as the CDC"
        what in the world do you mean by "pseudo-governmental agencies"
        It is a bona fide part of the government with specific authorities.
        You are just fishing for excuses for the irrational.

  5. What is the difference between “no jab, no job” and “no sex, no job”?

    The net result is the same.

    1. "Allow this person to penetrate your body with an injector tube and inject genetic material, or you are fired!"

  6. Its also different in that in a typical employment dispute, an employee may lose a job but be able to get another. With the vaccine mandate, unemployment is the only option, if all employers are required to comply.

    1. This is a good point.

      1. It is actually not a good point.

        I am sympathetic to who don't like doing something on orders from the government, but "irreparable injury" has always been understood to mean an injury incompensable by damages.

        Loss of employment is probably the most "compensable" injury there is. Back pay and front pay can be computed from the pre-existing salary structure.

        The question of availability of alternate work goes to mitigation of damages, not the underlying nature of the claim.

        1. The better way to frame it is that the "irreparable injury" is the vaccination -- i.e. once you get it, you can not undo it.

          1. Likewise, irreparable injury is your employer's lack of a vaccine mandate. Nothing is more irreparable than death by contagion.

            1. A lack of a vaccine mandate will kill no one.
              An unvaccinated person will cause harm to no one.
              An infected person can cause harm to others, regardless of vaccination status or mandate presence.

              Since you believe otherwise, please, attempt to describe the direct cause by which you think a lack of vaccination mandate will kill someone.

            2. How is that irreparable harm?

              Because these vaccines provide marginal benefit in preventing catching and spreading the virus, they do not appreciably help achieve herd immunity? Indeed, statistically, with what we know of the virus and these vaccines, the only way to get to herd immunity is roughly when 60% of the population in this country gets natural immunity from it, and the remainder is fully vaccinated. 100% vaccinated alone doesn’t get us even close. (Based on a Delta variant HIT of 80% and efficacy of the vaccines preventing spread in 50% of those vaccinated - which maybe high).

              The reality is that the argument for widespread, and esp mandatory, vaccinations of most of the country appears to at least Implicitly be based on the assumption that the vaccines can substantially get us to herd immunity. And that, is in turn, based on a couple other things. First, it was assumed that the vaccines would be at least close to sterilizing, that there would be almost no breakthrough cases. Nope. They are quite leaky, probably less than 50% effective in preventing the spread of the virus. That became obvious in early July. Then, the Delta variant pushed out all of the other variants through the month of July (currently at >99%). Delta has an infectivity (R0) twice that of the ancestral strain, and that means that the level of immunity required for herd immunity (HIT) went from roughly 60% to 80% with Delta.

              Take away your argument for herd immunity (which the vaccines do not appreciably help us achieve), and where is the public health argument for mandatory vaccinations?

              1. Take away your argument for herd immunity (which the vaccines do not appreciably help us achieve), and where is the public health argument for mandatory vaccinations?

                Even if everything you said were true (ha!), vaccination dramatically reduces severe outcomes from infection.

        2. "Loss of employment is probably the most "compensable" injury there is. Back pay and front pay can be computed from the pre-existing salary structure."

          That strikes me as the sort of claim only somebody with a couple years' wages in the bank could seriously make.

          Lengthy disruptions of employment have life-long consequences for people who don't have deep savings. Plans deferred within a finite lifetime, homes lost, health ruined. Giving the person some money later doesn't result in their lives being returned to the status quo ante.

          1. Also. Very difficult to get a job with a gap in your employment.

    2. But they aren't. Only applies to employers with 100 or more employees.

      1. Even so, a mandate makes it much harder to find another job. That likely varies by field and employment, but if the person already works for a company with 100 or more employees, then it may be difficut in that circumstance to find alternative employment.

      2. Which, interesting, in CA, probably means most people, since they have, essentially, banned their formerly flourishing gig economy. In the past, it was common in many industries to work as independent contractors, from Uber and Lyft drivers, through almost the entire movie industry. That is now banned in CA, requiring that these formerly independent contractors work through shell companies - putting many, if not most, under the OSHA mandate.

  7. This argument, however, conflates the potential harm arising from United's accommodation policy with the personal difficulty of deciding to decline the vaccine. United exempted Plaintiffs from the vaccine mandate; Plaintiffs were not required to violate their religious beliefs.

    Which is absolutely correct. And, thanks to Employment Division v. Smith, the same is correct of public sector employers as well.

    I will never cease to get a kick out of the fact that it was Saint Nino that wrote that decision, and that (of course) it would have come out very differently had the religion in question had been Catholicism rather than one that held peyote use to be a sacrament.

  8. "the vaccine cannot be removed from their bodies"

    It is removed completely within days. Your body has been making and recycling mRNA since before you were born. It's such a perishable molecule that the vaccines have to be kept super cold. Imagine how long it lasts at body temperature surrounded by enzymes dedicated to recycling it.

    What can't be removed is COVID resistance, which is a benefit not a harm.

    Time to say the emperor is naked. If they had sincere religious objections to vaccination they would have refused all other vaccines in life. Perhaps a few have. If they have not refused all other vaccines, they do not have sincere religious objections. Even Christian Science and the Jehovah's Witnesses permit COVID vaccination.

    1. What utter bullshit nonsense. The mRNA may be removed/recycled, but the changes it made while present are PERMANENT, you fuck-wit. The spike protein that ones body now makes in response to said changes by the mRNA is now known to inhibit DNA repair enzymes, and accelerate cancer.

      Get your nose out of The Establishment's ass, and do some independent web searches.

      1. "The spike protein that ones body now makes in response to said changes by the mRNA is now known to inhibit DNA repair enzymes, and accelerate cancer."

        The spike proteins also only last for a short time. If your body continuously made spike proteins, you'd have a constant immune response, which would be both bad and really obvious to everyone.

        As for your other assertion- citation needed. Like a peer reviewed journal kind of citation, not a "I read it on woowoonews dot com" kind of citation.

        1. Hey did you do an "independent web search" to find out that information or did you just trust the medical and scientific establishment?

        2. If the effects were not permanent to your immune system, the WTF are you getting vaccinated?

          The other thing that you are ignoring is that the vaccines have side effects. They can and do sometimes damage heart muscles, reduce fertility, and cause strokes. And sometimes they kill. Too many athletes have either died, or been permanently sidelined from their sports, soon after a 2nd or 3rd vaccination for this to be just happenstance. Last week, it was a mountain bike national champion. Football, baseball, basketball stars. It just keeps happening.

          1. And conservative radio talk show hosts. Oh wait....

      2. Now you have to resort to vulgarity. What a pity.
        Buddy, you have LOST this argument and all your vulgarity and vomting of lies is not going to change that.
        Get your shot or get used to unemployment.

      3. Get your nose out of The Establishment's ass, and do some independent web searches.

        Has anyone ever composed a more succinct expression of the internet's power to inflict brain damage? Not that there is anything wrong with brain damage, of course.

      4. As always, the bizarre anti-vaxx "Do your own research" adjuration does not actually mean do any actual research, but rather "Watch YouTube videos that tell you what you want to hear."

        1. And where do you get you data? From government bureaucrats?

          Do you trust the bureaucrats and the politicians to tell you the truth about inflation? Their domestic spying? The riots a year ago by AntiFA and BLM? Etc. why do you trust them here?

        2. Yes, YouTube videos are an important medium here. But that is because it makes it easier to build a structure, a framework, to understand the science. You can then dig deeper. If you start with the technical papers, they will be gobbly gook for 99% of the population. Heck, I bet that many of them are beyond 80% of the MDs.

          How did you go about gaining a sufficient familiarity with the underlying science and medicine to adequately understand the issue without listening to a YouTube video? If you have written means (articles, papers, etc) that address these subjects at a level that can be understood without a medical degree, but at a depth where the important details can be seen, then please provide us with the links for such, and we can trade insights, including critiques of each other’s sources.

          But your response that the arguments made by others came, at least initially, from YouTube videos is unpersuasive. You are attacking the messenger, without bothering to address the message. To have any reputability, the videos have to have some sort of expertise behind them. Most are by MDs or PhDs. The ones I watched a couple days ago were from a CME conference. That means doctors explaining the subject to other doctors. We aren’t talking RFK, Jr here, but experts in their fields.

          1. How did you go about gaining a sufficient familiarity with the underlying science and medicine to adequately understand the issue without listening to a YouTube video?

            It's called a PhD.

            How did you go about gaining a sufficient familiarity with the underlying science and medicine to adequately understand the issue without listening to a YouTube video? If you have written means (articles, papers, etc) that address these subjects at a level that can be understood without a medical degree,

            If you can't understand them at a level that a medical degree provides, then you aren't someone who's doing research in the first place. You are just finding someone who's saying things you like, and then parroting them.

    2. "If they had sincere religious objections to vaccination they would have refused all other vaccines in life. "

      These folks are not just gullible, antisocial, and ignorant. They're liars, too.

    3. "Time to say the emperor is naked. If they had sincere religious objections to vaccination they would have refused all other vaccines in life."

      Some object on the basis that the materials used derived from aborted fetuses. Which is not the case with most vaccines.

      1. Some object on the basis that the materials used derived from aborted fetuses. Which is not the case with most vaccines.

        Well, that's kind of is 180° backwards.

      2. Yup, Bored Lawyer, that is a terrific feature of American constitutionalism. The powers of government are limited. The power to invent objections is unlimited. Which means only un-inventive individuals need be constrained by law.

      3. It's true of enough vaccines and other medicines that pointing to the use of embryonic stem cells as a reason to object cannot be taken seriously. Virtually no one objecting to COVID vaccines on this basis has any idea how much they already benefit from using these cells to research, develop, or produce drugs and treatments we all rely on.

        1. Precedent requires that courts accept a person's religious belief (assuming they aren't lying) that the use of embryonic stem cells makes using a vaccine objectionable.

  9. Somewhat surprisingly, nobody has noticed - or articulated - the qualitative distinction between vaccines underlying a handful of previous SCOTUS' decisions, i.e., the vaccines that rendered an inoculated person fully immune and, in addition (critically here), prevented him/her from acting as a carrier of the infection, and covid vaccines (that neither ensure against being infected (due to a relatively high, in comparison with the vaccines addressed by SCOTUS, amount of breakthrough cases) nor ensure against an inoculated person being a carrier who could infect others). Given that, at least at this juncture, medical statistics suggest that a vaccinated person has a nearly identical ability to infect others as an unvaccinated person (and, for practical purposes, he/she is likely to infect more people around him/her: since an inoculated person is allowed to go maskless, while an unvaccinated person is required to weak a mask), the question - on a closer look - appears to be that of the right to die (because the aspect of infection of others is either irrelevant or supports an argument against vaccine mandates), meaning that - stripped of all niceties - a refusal to vaccinate simply means that an unvaccinated person makes an election to take the risk of dying from covid rather than the risk of suffering from side effects of a covid vaccine (in the event of a request for a medical exemption without a record of prior allergic reaction or other sufficient medical conditions, e.g., if a person has intuitive medical reservations that are facially insufficient for an exemption) or if he/she elects to take the risk of dying over the risk of violating his/her sincerely held religious beliefs (this would be relevant to a request for a religious exemption). However, no matter how to slice it, this inquiry raises a unique constitutional concern qualitatively different from those addressed in the prior SCOTUS' decisions: because it is not permissible to regulate an election to die from natural causes. Indeed, people take selfies over cliffs or when standing at open windows, and some of them fall to their deaths upon making such a choice, but we don't regulate their elections, even though such elections impose an unreasonable amount of risk upon the selfie takers (and, in a case of those who are standing at open windows, to the pedestrians below). So, it appears that the question is wrongly framed as an employment law question.

    1. Anna,
      Very few vaccines are sterilizing vaccines. I doubt that you distinction will make much of a wave in Court.
      People are being told to vaccinate so so much to protect themselves as to protect others even if that protection is imperfect (and it is).

      1. But these vaccines, since they only present a small portion of a virus (several spike proteins) to our immune systems, are uniquely leaky and non sterilizing. Most vaccines have an efficacy against spread of their target in the high 90s percent. These vaccines are apparently under half. With regular, fully FDA approved, vaccines, for other viruses, herd immunity is simply a matter of vaccinating a couple more percent of the population than required for herd immunity (HIT). But, because of how leaky these vaccines are, and the high percentage of breakthrough cases, it is impossible to reach herd immunity on just the vaccines alone, and, mathematically, it probably means maybe 60% with natural immunity as a base, to get to the required (Delta variant) HIT of 80% with 100% vaccination of the remaining 40% without natural immunity.

      2. I certainly agree that very few vaccines are sterilizing, but the public health argument is necessarily about the protection of others: without it, any vaccine mandate is a mandate depriving a person of the right to elect the risk of death from a particular natural cause. Since, at this juncture, there's no dispute that inoculated and non-inoculated individuals have a nearly identical ability to act as a carrier of covid-19, the protection-of-others aspect is necessarily removed, thus transforming a mandate issued, allegedly, in order to protect public health, into a mandate directing employees to take an action that would ensure with - insert here the efficiency percentage of a particular vaccine at issue - that the employees would die of causes other than complications of covid-19, and the mandate make employees to make this choice under the threat of losing their employment. Since no portion of the U.S. employment laws existing thus far requires an employee to elect against a particular risk of death from natural causes (short of a handful of safety measures such as wearing a hardhat at a construction site, or a protective suits at a nuclear facility, etc., and such measures are easily distinguishable, since wearing a hardhat or a suit cannot burden a religious belief, because many religions require a covered head but no major religion requires a lack of hat, and nudism is not a requirement of any major religion, plus a nudist would be unable to work at a public anyway, etc., and such safety requirements cannot cause a reasonable person's concerns about side effects of wearing a hardhat or a protective suit, since they can be removed at the end of the work hours, unlike a vaccine, obviously), so since no portion of the employment law existing thus far requires an employee to elect against a particular risk of natural death, then it means that employees declining covid-19 vaccinations are threatened with loss of job because of their choice as to the risk of death from a particular natural cause, which is not only an employment law nonsense but verifies a facial overreach of the mandate: since the president has no authority to regulate a risk-of-natural-death choice of federal employees, or federal contractors, or employees of private entities of any size. The cases that legal scholars and practicing attorneys have been invariably citing in support of the president's mandate are those very few SCOTUS cases that addressed specific vaccines that prevented - for all practical purposes - the ability of an inoculated person to act as a carrier of the disease against which the vaccine was created, and one full set of inoculation with those vaccines was either for life or many decades. In contrast, a covid-19 vaccine seemingly requires a booster shot nearly every six months. So, the distinction is about the nature of the vaccine; otherwise, a flu vaccine could also become a condition of employment, and then a vaccine against any strain of cold, etc., etc. - meaning that we would invite a stream of mandates with no end in sight.

  10. This is such a bizarre distinction. Fired for refusing to submit to a supervisor's sexual advances? No irreparable harm. Fired for refusing to work in hazardous conditions? No irreparable harm. Fired for refusing an injection with a vanishingly small risk of side effects? Irreparable harm.

    While I'm no fan of this mandate, I think the republic will survive a few vaccine skeptics losing their jobs, especially if they have a damage remedy.

    1. "the republic will survive a few vaccine skeptics losing their jobs"

      The republic would survive many things that are blatantly unconsitutional.

      1. " blatantly unconsitutional."
        not yet BL, Not yet.

  11. Whoever held that losing a job is not irreparable harm has never lost a job. The family strees and financial worry that comes with it is not ameliorated by a later backpay and reinstatement. The ruling is out of touch with reality.

    1. You are, I assume, a lawyer (unlike Armchair Lawyer). You know that "irreparable harm" is a term of art that refers to things that can't be remedied with money. Your argument proves too much. If "what about the stress from the financial problems" were sufficient to make something irreparable harm, then every situation would be irreparable harm. (Well, every situation with an individual party as opposed to a corporate one, I guess.)

      1. DN, I am a real lawyer, I don't just play one on TV (or the internet.)

        Losing one's livelihood is different in kind, I submit, than losing a piece of property or some money. For most people, it has a total impact on their lives than lesser monetary loss.

  12. By the way, the mandate applies ONLY to employers who have 100 or more number undercuts the urgency of the mandate. There are millions that are employed by small -- and 100 is not all that small - employers. Acc. to one website I found, employer firms with fewer than 100 workers employed 33.4 percent of the work force.

    So that means that 1/3 of the workforce is not even covered by the mandate. That seems like a huge exception. (Or "Yuge," if you are of that persuasion.) Hard to believe that if a few religious objectors are let off that it will make any public health difference.

    1. The federal government only has juridiction over interstate commerce. Limiting to interstate commerce jurisdiction doesn’t undercut a claim of compellijg interest within that jurisdiction.

      1. '100 or more' is not the same thing as 'interstate commerce,' and you know that. Nowadays, it would be hard to find any business that would not be subject to federal legislative jurisdiction.

        Title VII of the Civil Rights Act, which outlaws racial and other forms of discrimination in employment, applies to employers of 15 or more. You are not seriously suggesting that such is beyond the federal power, are you?

        1. I think plenty of people would say that such are beyond the federal authority. "Power" is, manifestly, another matter.

    2. For example, the fact that the FDA doesn’t have authority over intrastate drug compounding doesn’t undercut a claim that it has a compelling interest in enforcement of public health in interstate commerce.

      If this argument were valid, every limitation in Congress’ jurisdiction would be proof it isn’t serious. For example, the limitations imposed by due process - trials, evidence, stuff like that - significantly limits the proportion of crimes that get punished. But the fact that these limitations also result in punishing only a fraction of people who commit (say) murder, doesn’t prove that Congress isn’t really serious about murder and therefore has no interest in it. The same with the fact that Congress doesn’t punish murder outside interstate commerce jurisdiction.

      And the fact that laws, especially older ones, sometimes have a narrower definition of interstate commerce relevant companies than the maximum possible no more proves Congress isn’t really serious and its interest isn’t really compelling, than (say) giving defendants more due process than strictly necessary would prove Congress isn’t really serious about and doesn’t really have a compelling interest in interstate commercial violent crime.

      1. See my above comment. Your posts here do not match reality. To make that work, you would have to use an "interstate commerce" limitation, not a "100 employees or more" limitation.

        If you did that, then virtually every business would be subject to the mandate. (Nowadays, even tiny ones. I know people who run single-person businesses that operate out of their house, and sell items on Amazon or other Internet platforms. That is interstate commerce by any definition.)

        1. Congress has used number-of-employees limits as rough tests of what constitutes interstate commerce many times. Would it be your position that, for example, the fact that the Civil Rights Acr doesn’t cover business’ below 15 employees proves that there is no compelling federal interest in employment discrimination?

          It’s the same issue. You may not like Congress’ use of these number-of-employees tests. But it’s been established law for many decades. And your totally wrong in your claim that it has nothing to do with interstate commerce jurisdiction. That’s exactly what it’s about.

          Note: I’ve argued discrimination laws in general shod be rational basis. But the Supreme Court has disagreed with me, at least on racial discrimination. I don’t see the 15 employee limit as relevant to the question.

          And I see the issue as completely relevant. Asserting a narrower interstate commerce jurisdiction than absolutely necessary is no different from, say, giving a defendant a lawyer or requiring corroborating evidence when you don’t absolutely have to. Jurisdictional limits on federal power promote individual rights just as lawyers and evidence do. And greater attention to rights than strictly necessary does not defeat federal interest in what it does assert immigration on.

          For example, I’ve argued that the federal government doesn’t have to give prospective immigrants a hearing or judicial review before it deports them unless they assert a colorable claim to being citizens. The fact that Congress provides hearings and judicial review undoubtedly means the federal government ends up deporting a lot fewer than it could. The fact that the ststutes provide for various exceptions and categories of discretionary amnesty also make the statutes cover less than they might. But the fact that the federal government has chosen not to assert its immigration powers as broadly as it could doesn’t in any way establish that it doesn’t really act as if it has a compelling interest in immigration when it does assert those powers.

          An anti-immigration activist who tried to assert such an argument would be laughed out of court, and deservedly so. So should anti-vaccination activists who try to assert similar arguments about limitations in the law due to concerns about the scope of federal interstate jurisdiction.

      2. And, by the way, "Congress is not really serious" is not the test. The test is narrowly tailored to advance a compelling government interest. I am having a hard time seeing how you meet that when 1/3 of the workforce is exempt.

        1. I am having a hard time seeing how you meet that when 1/3 of the workforce is exempt.

          Which poses a more serious health risk: bringing a dangerous substance to a workplace with hundreds of people? Or bringing a dangerous substance to a workplace with 5 people?

          1. There are lots of holes in your argument, but the most salient one is that the 100 mark leaves many employees at significant risk. You've stacked the deck by comparing 200 to 5, but I fail to see that there is a significant difference between a workplace of 50 or 75 and that of 150 or 200. (If the cutoff was 5, then you might have a point.)

            One of the more hysterical posters here has compared going unvaccinated to killing your neighbor. The fact remains that the OSHA reg leaves 1/3 of the workforce unprotected from this danger. That exemption, as far as I can tell, is grounded in administrative and economic convenience. The point is, if you can exempt business that have less than 100 workers, you can exempt a few who think that their religion requires them not to take the vaccine.

            (Other flaws in your argument:
            * Being unvaccinated is not a "dangerous substance." There is heightened risk of transmission of a virus, but that is hardly the same as bringing, say, a radioactive material into the workplace.
            * Here the risk is mitigated by being vaccinated. In a workplace of 200, there is a good chance that at least half will be vaccinated, which mitigates the risk considerably.
            * The 100 employee cutoff is by the size of the employer, not the workplace. An employer that employs 200 workers at 10 locations is not the same as an employer that employs 50 workers in a single location.)

            1. There is heightened risk of transmission of a virus, but that is hardly the same as bringing, say, a radioactive material into the workplace.

              Of course it isn't. It is notably worse. Even the fiercest radiation sources don't imbue victims with any power of contagion. To make your analogy work, you should posit an essentially contagious radiation source, something deadly which could get on the workers or their clothes, and go where they go. Plutonium dust, maybe.

              But if you do that, you are proving the other side of the argument.

        2. When the framers set up federal government powers, they set up a system of limited dederal power that advocates of unitary power could justly criticize as non-serious.

          The federal governmentcan never completely solve a problem because it keeps bumping into jurisdictional limits. It can’t be completely serious about civil rights (Civil Rights Act limited to 15 employees), environmental peotection (WOTUS etc.), virtually any subject you name. It can’t even be serious about church arson because it can only prosecute if it can show the church had a gift shop that sold goods in interstate commerce!

          How can such a form of government, with its hands constantly tied in these obscure and absurd-seeming ways, possibly be serious about anything? How can it assert a compelling interest in anything?

          Especially when shifting norms and conceptions about its limits mean that it is riddled with laws that tie its hands even further than it absolutely has to?

        3. I am having a hard time seeing how you meet that when 1/3 of the workforce is exempt.

          That the mandate is too narrowly tailored might support an equal protection claim by someone whose workplace is exempt, but under what theory is it relevant to a First Amendment claim? Strict scrutiny doesn't bar restrictions that are underinclusive.

    3. "So that means that 1/3 of the workforce is not even covered by the mandate. "
      Actually, if you have an subcontract to a prime contractor of the government you are covered by the governments mandate on its workers and contractors.
      For example, I have been informed that as an independent contractor to a subcontractor of a prime contractor, I am covered.

      1. Don Nico, this aspect if you have an subcontract to a prime contractor of the government you are covered by the governments mandate on its workers and contractors has not gotten enough traction and discussion. We are going to see an exodus of STEM oriented employees from smaller federal contractors. And it will be most acutely seen in positions where remote work is possible. I really do not think policy makers have thought this all the way through. They're in for a surprise.

        The first bolus of departures will happen this month, and it is already underway. The second bolus will come after the new year, post January 4.

        Leaving aside the politics (hard to do, I know), it seems to me that from a purely pragmatic POV, the federal mandate should be altered to allow remote workers who do not go into an office the option of not putting the needle into the arm. I don't think it is a good idea to have these people just up and abruptly leave. It will impact us in ways we do not foresee.

        1. C_XY,
          From a notice that I got the past week from a prime contractor, the requirement of 100% compliance (with certain exemptions) applies even to those employees and subcontractors who are 100% off-site / remote.
          I have a good imagination, but I really cannot figure out how I could infect someone over a Zoom link. Maybe someone here can write a nice piece of science fiction about that.
          (Full disclosure: I have now gotten my Pfizer booster).

          1. Don Nico....you did the right thing for you, for your own reasons, by your choice = booster. That is what matters.

    4. I found, employer firms with fewer than 100 workers employed 33.4 percent of the work force.

      That has a good-news corollary. To employ that big a percentage among only small employers probably means that the 33 percent encompass the majority of all employers, maybe a large majority. In that light, someone laid off for vaccination refusal has not suffered stringent exclusion from employment. On the contrary, most of the employers in the nation remain candidates to hire the person laid off.

      1. It would be hard to get a good figure, but it would be interesting to know how many jobs unaffected by mandates remain after one removes all the companies large and small with sub-contracts to US government prime contractors.

    5. By the way, the mandate applies ONLY to employers who have 100 or more number undercuts the urgency of the mandate.

      You're a lawyer; read the release. OSHA explains why it chose that number:

      OSHA has implemented a 100-employee threshold for the requirements of this standard to focus the ETS on companies that OSHA is confident will have sufficient administrative systems in place to comply quickly with the ETS. The agency is moving in a stepwise fashion on the short timeline necessitated by the danger presented by COVID-19 while soliciting stakeholder comment and additional information to determine whether to adjust the scope of the ETS to address smaller employers in the future.

      So, somewhat ironically, the emergency nature of the mandate itself explains why that 100-employee threshold was chosen.

      The rule is in its comment period. You could always submit one, if you think the rule should apply to smaller employers.

    6. Except in CA where independent contracting has, essentially, been banned, except for obvious exceptions, such as for the attorneys who drafted the initiative.

  13. Professor Blackman mischaracterizes Sherbert. What Sherbeld is that the state can’t characterize an employee who was fired as a result of a religious-objection dispute as misconduct, so it can’t subject a terminated worker to a penalty that applies only to people who committed misconduct.

    But mere employment termination does not imply misconduct in any way.

    Under Sherbert, the employees involved can indeed be fired. Their religious objections simply can’t be characterized as misconduct that would subject them to misconduct-based unemployment benefits denial on top of being fired.

  14. This has nothing to do with public health or preventing Covid. It has everything to do with coercion and control. How dare you no get a vaccine that probably, for most, makes a Covid infection go from moderate to mild, and, at most, maybe in the .1% of cases where it would go to such a vector, keep you out of the hospital.

    1. That’s true. But fire departments don’t actually prevent fires from happening. Everyone who lights a cigarette, uses a gas stove or heat, an internal combustion engine, etc. uses fire. Millions of fires are lit in this country every day.

      Fire departments don’t actually do anything at all to erradicate fire. It isn’t their purpose. Their real purpose is prevent fires from getting out of control and killing people. If you have a fire department, you don’t actuallu eliminate fire. You just have fewer people die from it.

      Does the fact fire departments have nothing actually to do with eliminating fires, all they do is keep them mild, prove that their sole real purpose is coercion and control? Do you advocate eliminating fire departments and fire codes in the same way you are advocating this? The same argument seems equally good for both.

      1. But these vaccines neither really prevent the virus, nor act like a therapy for such. The don’t do a bit of good, if administered after you have caught the virus. At best, they can be viewed as a weak prophylaxis.

  15. So being told to vote for a particular candidate or lose your job is OK?

    How about attend a particular church? Or no church at all?

    1. FED,
      All these analogous questions cut no mustard.
      Get the shot or get unemployed.

    2. Of course not because the government must overcome strict scrutiny to condition a job on who you vote for or what church you attend. As of now, it appears the government has some lesser burden to overcome to condition employment on vaccination.

      1. Of course not because the government must overcome strict scrutiny to condition a job on who you vote for or what church you attend. As of now, it appears the government has some lesser burden to overcome to condition employment on vaccination.

        ISTM that your burden argument is beside the point; conditioning a job on who one votes for or what church one attends would flunk even the rational basis test. Whereas conditioning it on vaccination status does not.

  16. "Ms. Hamilton testified that, if placed on unpaid leave, she would lose the income and medical insurance that currently fund her husband's cancer treatment. See id. at 48:5–50:2"

    "... according to their claims, inflicts an irreparable injury to their conscience."

    Hamilton's husband very likely is immunocompromised. Hamilton's conscience must not at all be strained by an increased possibility of transmitting the virus to here husband.

    The cancer treatment for Hamilton's husband is likely chock full of pharmaceutical technology that used fetal stem cell lines somewhere along the way, at least indriectly.

    I suppose the great thing about having a conscience is that only the holder of the conscience gets to decide what violates the conscience. Even very similar actions could have different effects on said conscience.

  17. So being told to vote for a particular candidate or lose your job is OK?

    Did you see that NewsMax show too?
    OMG am I right?

  18. If employees get terminated, and the regulation is late found to be invalid under the statute, I am unclear who is compensating the employees. Not the employer for sure. OSHA.gov? Seems unlikely.

    1. One thing is for certain. Lawyers will get yachts out of it either way.

  19. TALENT (NON) RETENTION, TEXAS-STYLE

    Nice to see law profs (also) engage in policy reasoning as in: How can this be handled without resort to 100+year old precedents and antecedents and mucking around in the corpus linguisticus mortuus. It's all Greek to the geek, not to mention the plebs-at-large.

    So, in that vein, having the vaxx-averse telework from home ... What a great idea!

    That said, and returning to the enduring vibrancy of centuries of common master-servant law: Texas still follows the at-will doctrine.

    Why didn't that come up?

    At will ... as in: Don't wonna get stuck? -- Why don't-cha take ur tail-ends elsewhere, y'all?

  20. The irreparable harm comes to those who submit to the use of (economic) force and get the experimental, emergency use only vaccine; and it turns out the politicians pretending to be doctors get it wrong (again), and the (not yet studied) long term side effects kick in.

    1. Sigh. Once again: Pfizer is fully approved. It is not "emergency use only."

      1. Not the Pfizer vaccine being administered. There are two, closely related Pfizer vaccines. One is being administered to millions of people under EUAs. The government has purchased hundreds of millions of dollars of that version. Their FDA approved vaccine isn’t being produced yet, hasn’t been stockpiled by our government, and isn’t being injected as a vaccine yet in this country.

        It is pure smoke and mirrors. The FDA approved vaccine is, so far, just for looks. Why not switch over to manufacturing it? One big reason is the huge stockpiles of the non approved vaccine. Another is the liability waiver that comes with an EUA. People are dying from the vaccines. So far, probably fewer than are being saved by them. But their families might have a cause of action against Pfizer for their deaths -except for the EUAs. Ditto for athletes who have been invalided from their sports (national champion mountain biker last week, etc). Lost income suits, etc. Except, again, EUAs.

        And we are about to enter very questionable territory. Most batches of the vaccines are as safe as the underlying technology can make them. But all three companies have produced and distributed bad batches. The scary thing is that with vaccination of those under 18, the fatality rate from bad batches of vaccines will equal, if not exceed, the fatality rate for that demographic dying from the virus. But, again, we have the liability immunity of EUAs to the rescue.

        1. There is exactly the same liability (none) for the fully approved vaccine as for the EUA one. Your lawyering is worse than your doctoring.

      2. Only the brand name Comirnaty is fully approved by the FDA. There is none of it available in the U.S. at the moment. All the rest are under an EUA, which gives everyone the right to refuse those jabs under existing U.S. law.

        1. Only the brand name Comirnaty is fully approved by the FDA. There is none of it available in the U.S. at the moment. All the rest are under an EUA,

          It is the same formulation. Please stop telling lies in a desperate attempt to salvage a stupid, anti-science anti-intellectual position.

          which gives everyone the right to refuse those jabs under existing U.S. law.

          Everyone has the right to refuse a vaccine whether it's fully approved or only EUA. They just don't have the right to do so free of consequences.

      3. Big pharma will lose its liability shield if it releases the "approved" vaccine. The is no way they will do that given the adverse effects of these poisons.

        1. Yeah, that's false too. Both sentences.

  21. Pilots and flight attendants and airplane mechanics can't work from home, Josh. The argument that the accommodation does not cause irreparable harm is untenable on its face. The psychological harm alone is sufficient.

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