Carey Business School Expert Stacey Lee Discusses The Implications And Possible Outcomes Of Requiring Employees To Get Covid
Impatient with the reluctance of millions of Americans to be fully vaccinated against COVID-19, President Biden on Sept. 9 ordered that businesses with more than 100 employees require workers to get the shot or test negative for the virus at least once a week. In late July, Biden issued a similar order for most federal workers.
Even before the president took these steps, questions were being raised about the legality, medical necessity, and political wisdom of vaccine mandates. Do labor unions have much say about such mandates? Does a 1905 ruling by the U.S. Supreme Court affirming mandatory vaccination still have teeth? And should employers worry that workers might walk off in significant numbers if forced to get the vaccine? To address some of these issues, the Hub talked with Stacey Lee, an associate professor of practice at the Johns Hopkins Carey Business School and an expert in business law, health law, and negotiation.
Tips To Safely Carry Your Covid
You may need to show proof of your vaccination to access certain activities and services like:
- Large events or gatherings
Here are some tips to safely carry your card:
- Take a photo of the front and back of your card. Keep it handy on your phone in case you may need to show it.
- Dont share it on social media. Your card may contain sensitive information like your name and date of birth.
- Dont laminate it. You may need booster shots in the future as experts learn more about the virus and the vaccines.
Increasing Testing & Requiring Masking
It will take time for the newly vaccinated to get protection from the virus. As we continue to combat COVID-19, testing is a key tool to identify infected individuals and prevent spread to others. Likewise, masking can also help slow and contain the spread of the virusand the combination of increased vaccinations and masking will have a major impact on COVID-19 transmission. President Bidens plan takes new actions to increase the amount of testingin your own home, at pharmacies, and in your doctors officeand ensures that strong mask requirements remain in place.
Are Vaccine Mandates Effective
There is considerable behavioral scientific data that vaccine mandates are effective. That includes both hard mandates and soft mandates . Hospitals that have required influenza vaccinations have achieved and maintained far higher coverage than those that make it voluntary. At the same time, K12 school and IHE mandates have given the U.S. high vaccination rates.
Many business and educational mandates fall into the hard categorythat is, students or workers cannot attend classes or the workplace unless they are fully vaccinated. Soft mandates nudge people to get vaccinated. When getting a vaccine is the easier or default option, most opt for the jab. Thus, when given the choice between getting a vaccine or having to undergo one to two SARS-CoV-2 tests weekly and masking up, most people will eventually roll up their sleeves. How do we know? Well, in states that have wide and easy exemptions for childhood vaccines, a significant number of parents opt out. But if a state makes getting the exemption hard, such as requiring a written declaration, a doctors certificate or attending vaccine literacy classes, vaccine hesitancy melts away. The same will happen for COVID-19 vaccinations.
How Millions Of People Will Avoid Vaccine Mandates
Bidens order that companies with more than 100 employees be required to mandate employees be vaccinated or regularly tested wont affect the millions of workers who are employed by independently owned franchises. For example, lots of fast-food restaurants are not corporately owned and have fewer than 100 workers. The corporation could require all franchises to require vaccinations, but CNN talked with Brian Kropp, chief of research at consulting firm Gartners HR practice, who said that is not likely:
With a record number of job openings and not enough job seekers to fill them, the war for talent is intense right now, Kropp said. If McDonalds does and Wendys doesnt, those employees who dont want to get vaccinated are going to walk out the door to go over to Wendys.
Many other large companies hire independent contractors, rather than employees, to interact with the public, including Uber, Lyft and other major delivery services such as DoorDash and Instacart.
In addition to their need to hang on to workers, those companies have a bigger issue at play imposing a vaccine mandate on drivers could complicate future legal battles over whether they should be considered employees rather than independent contractors, Kropp said.
If the mandate were to apply to them, it makes it more likely in future legal cases for drivers to say, Were treated the same way as employees, said Kropp.
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From Free Pizza To Free Tuition Colleges Try Everything To Get Students Vaccinated
The other kind of common requirement applied to adults who are over the age of 18 has been university requirements college attendance requirements. College students in many states are required by law, not just by the of the college, to get a meningitis vaccine because of a higher incidence of meningitis outbreaks in the kind of congregate setting on campuses. And we’ve seen these same groups sort of lead the charge on vaccination requirements for COVID.
Cities States And Universities Already Have Vaccine Mandates
Several states, including California and New York, require state employees to be vaccinated. Additionally, several cities, like New York City and San Francisco, require proof of vaccination for inside dining, gyms and other indoor activities. Los Angeles County requires proof of vaccination to enter indoor bars, nightclubs, breweries and wineries. This could eventually be extended to all public indoor places for everyone eligible to get the vaccine.
Nine states, as well as the District of Columbia and Puerto Rico, have vaccination requirements for staff in K-12 schools.
More than 400 colleges and universities are also requiring vaccines for students who plan to take in-person classes.
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Why It’s Not Possible For The Covid Vaccines To Contain A Magnetic Tracking Chip That Connects To 5g
Though the Supreme Court banned vaccines in 1776 to further control the spread of smallpox, General George Washington continued to secretly mandate vaccines for troops who were entering Philadelphia and hadnt yet been infected by the disease, which eventually helped conquer the epidemic.
American soldiers have gotten vaccinated during major conflicts since the American Revolutionary War and continue to cooperate in a vaccination routine required by the U.S. military against more than 20 diseases such as flu, tetanus and cholera.
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But that’s not the same as a vaccine mandate.
A vaccine mandate means we’re setting a condition on you returning to society or participating in a particular activity. And that condition is you’re vaccinated.
So you want to return to work. You want to go to the University of Wisconsin-Madison. You want to attend your school . States are setting vaccine mandates and private employers are doing the same because they can, legally. That’s very distinct from a compelled vaccine.
Now, how far can we go with that? Very far. The U.S. Supreme Court has even affirmed that we can set vaccine mandates at the state or local level. So right now, we have Supreme Court precedents allowing that to occur.
RF: Say I’m a business owner in a state where the state government bans discrimination based on vaccine status. But I think that vaccines are necessary to protect people’s health. If I challenge that in court, how likely is it that I’m going to be successful?
JH: The claim is, I’m an employer trying to operate a safe workplace for myself, for my employees, for my customers. And I can’t in some ways discriminate against persons who are unvaccinated. We’ve got state laws that say that right now.
But your ability to set other requirements may be part of what we’re anticipating.
We expect we’ll see litigation around what and how far employers go. It’s about to come to courthouses near you.
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What Does The Law Actually Say About Vaccine Mandates
- Thursday, July 22, 2021, 2:00pm
Legislatures in some states, including Wisconsin, are seeking legal protections for people who aren’t vaccinated in the form of anti-discrimination laws.
But those against such measures say that choosing not to get a vaccine is a personal choice and shouldn’t be a protected status in the same way as race, gender and religion.
James Hodge, a professor of law at the Sandra Day O’Connor College of Law and director of the Center for Public Health Law and Policy at Arizona State University, says legislatures ultimately have to make that call, though the decision is clear to him: those who are unvaccinated should not be made a protected class.
“You’re only going to have preventable deaths and morbidity related to it,” he said in an interview with Rob Ferrett on WPR’s “Central Time.” “It’s a horrendous outcome, and it’s totally due to that level of protection for persons who just don’t want to have to take the vaccine.”
As Republicans push for such protections for the unvaccinated, Hodge clears up what the law says regarding vaccine mandates.
This interview has been edited for brevity and clarity.
Rob Ferrett: From a legal standpoint, do we have a lot of precedent for these kinds of vaccination restrictions and laws restricting them?
And what those actually go on to say is that we can and will, under circumstances, require vaccination among specific persons and set specific limits on who can do what based on whether they’re vaccinated.
Can The Federal Government Require Vaccines
The federal government does mandate vaccines for military service members, for example. It’s just that the federal government’s purview is narrower than the states’.
The kind of role of the federal government is supposed to be playing is gap-filling. And so transit workers, for example, I could imagine the federal government issuing a vaccination requirement for airlines that are moving in interstate transit to require flight attendants interacting with the public to be vaccinated. That would fall within the kind of gap-filling role of the .
The federal government doesn’t have what we call plenary power to protect the public’s health, safety and welfare. Instead, any time the federal government acts, it has to point to a nexus to one of its constitutionally enumerated powers, like the power to regulate interstate commerce.
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Several Us Companies Are Reportedly Considering Health Insurance Surcharges For Unvaccinated Employees For Example Delta Air Lines Already Said Its Unvaccinated Employees Must Pay An Additional $200 Per Month Starting Nov 1 To Stay On The Company’s Health Plan What Do You Think Of Using Health Insurance Surcharges As A Way To Encourage Vaccination And Presumably To Help Offset The Costs Of Covid
I am in favor of employers resorting to carrot-and-stick measures to encourage people to get vaccinated. It is reasonable to require individuals absent a qualified exemption to bear a portion of the health care costs resulting from their refusal to get vaccinated. Delta Air’s approach reminds me of the premium surcharge that tobacco users face in some companies if they fail to stop smoking, use tobacco-related products, or comply with reasonable alternatives like completing a smoking succession program.
In the case of Delta Air, the company says its approach is yielding results. In the two weeks since announcing the surcharge, Delta Air announced that one-fifth of its unvaccinated workers received the COVID-19 shot.
You Can Now Get Your Flu Shot And Covid Vaccination At The Same Time
The Centers for Disease Control and Prevention once advised people to take flu shots separate from COVID-19 vaccinations, but the CDC just changed its guidelines and says it is fine to take them at the same time. That will be important as we all will line up soon for booster shots.
I just got my annual flu shot. I take it every year. The CDC says there are lots of reasons to do so, especially in a pandemic:
- Fewer influenza cases mean fewer people needing to go to hospitals and doctor offices that are already overburdened with covid cases.
- Avoiding the flu means you wont mistake flu symptoms for covid symptoms.
The CDC says the flu vaccine works best if you get it before the end of October. By now, you probably know that vaccines need some time to become fully effective because they stimulate your bodys immune system to produce antibodies. Getting the flu vaccine weeks before the height of flu season gives your body enough time to be ready to protect you.
The 2020 flu cycle produced far fewer cases than normal because we were not around each other much last year. But this year the flu may make a comeback, partly because we are more social and partly because we have been socially distanced and may have lost some immunity.
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Requiring All Employers With 100+ Employees To Ensure Their Workers Are Vaccinated Or Tested Weekly
The Department of Labors Occupational Safety and Health Administration is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
Requiring Vaccinations For All Federal Workers And For Millions Of Contractors That Do Business With The Federal Government
Building on the Presidents announcement in July to strengthen safety requirements for unvaccinated federal workers, the President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. As part of this effort, the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health will complete implementation of their previously announced vaccination requirements that cover 2.5 million people.
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Will More Organizations Require A Vaccine In The Future
Its likely. Mr. Friedman, who anticipates that more businesses will require vaccinations in the future, maintains that the legal precedent for mandating vaccines is already there, its just up to these entities to decide to act on it.
Its not a legal decision, he said. Its a political and economic judgment that these companies are making.
Government Can Compel Shots But Federal Or State Government Is The Question
President Bidens decision to compel workers at large companies to receive Covid-19 vaccines, a strategy to get as many Americans vaccinated as possible, has provoked a predictable uproar. Much of the outrage has been purely political, but opponents have raised serious questions that deserve a respectful response.
The first of these questions is whether a vaccine mandate violates liberties secured to every American under the Constitution. The Supreme Court answered this question in 1905 after a citizen sued Massachusetts to invalidate a law under which the city of Cambridge ordered its residents to get vaccinated against smallpox.
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Can The Vaccine Be Made Compulsory For Certain Groups Of People
Yes, health workers are the classic example. Hospitals often require some staff to get a flu or hepatitis B vaccine.
Universities may mandate students, faculty and staff to be immunized for certain diseases before coming on campus. Schools may have the same requirements for children.
In August 2021, a federal appeals court in Chicago ruled Indiana University can require students and employees to get the COVID-19 vaccine the highest court decision regarding college immunization mandates, the Associated Press reported.
Is It Legal Considerations Or Political Concerns Stopping President Biden From Issuing A Nationwide Vaccine Mandate
I think it’s a combination of the two. Actually, there are different constraints, not based on individual rights, but based on federalism and also separation of powers. What I do think we’re likely to see is some incentives and conditions on things like participation in Medicare for hospitals and maybe skilled nursing facilities, nursing homes. But that’s very different from the kinds of mandates that we’re seeing employers adopt and that we’re seeing at least a couple of local jurisdictions consider for patrons of certain businesses.
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Vaccine Mandates Are Lawful Effective And Based On Rock
Clear legal pathways exist to move the U.S. closer to herd immunity
The U.S. has reached a worrying plateau in its COVID-19 vaccination coverage, with just half of the population fully vaccinated. This coincides with pandemic fatigue, or weak compliance with COVID-19 risk-mitigation measures such as masking and distancing, and the highly infectious Delta variant, which accounts for more than 83 percent of infections. Were at an inflection point in the pandemic, with coronavirus infections soaring by about 140 percent in the past two weeks.
Reflecting deep concern over lagging vaccinations, the Biden administration recently mandated vaccinations for all federal workers and contractors , while the Department of Veterans Affairs issued mandates for all frontline health workers at its facilities.President Joe Biden also ordered the military to move toward compulsory vaccinations.
Are these mandates lawful and ethical? The short answer is emphatically yes. And there is strong behavioral science evidence that mandates will be highly effective.