Not to put words in the President’s mouth, but I think Joe Biden has had it. Last week he signed an Executive Order requiring all businesses with over 100 employees to require said employees to get the COVID-19 vaccine or to get tested for the disease on a regular basis. The EO puts enforcement of the mandate-there I said it-on OSHA, which has plenty of enforcement tools in its toolbox.
Personally, I think it’s about time. This pandemic which is draining resources and clogging up hospitals is a scourge created by the unvaccinated. The stats don’t lie. In every state, the vast majority of folks that acquire the disease or the delta variant thereof are not vaccinated. The overwhelming majority that die from it are likewise unprotected. This public health crisis is susceptible to amelioration by proven medical intervention. Which does not include horse de-wormer or whatever Jim Bakker is hawking at the moment as one of its protocols.
Predictably the gasbags on the right-gasbagitis having no known cure-have denounced this as “government overreach” and “dictatorship.” 3 or 4 governors have threatened legal action. To which President Biden has said, “Bring it on.”
He’s got the better argument based on what us lawyers call venerable case law. In 1905, there was a smallpox epidemic. The City of Cambridge, Massachusetts mandated that all of its citizens be inoculated against the disease. A local pastor named Jacobson took umbrage at this notion. He sued claiming that forcing he and his son (as I recall) to take the medicine violated his 14th Amendment rights to “life, liberty and property.” In other words, considerations of personal liberty come above all else.
Does this sound remotely familiar?
Anyway, the Supreme Court upheld the actions of the government in this case, stating that “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Now, unless the US Supreme Court is going to ignore over 100 years of settled law in the case of Jacobson vs. Massachusetts -and who knows with this bunch?- Joe Biden is on pretty solid legal ground I would say.
So what will happen as a matter of practicality? Will folks quit their jobs en masse as a matter of what passes for principle? Doubtful. Just look at it from the unemployment compensation angle. An arguable “voluntary quit” would render one ineligible for unemployment. Further, refusal of a lawful request by an employer-which this would be-is insubordination which would likewise render an employee ineligible. OSHA hasn’t promulgated its regs on the issue yet (and this will most likely be where the action is at legally) but I imagine that the “closely held religious belief” exception (or legitimate medical condition exemption) to getting the shot will still be available. But as far as I know that exception would not apply to getting tested. Just because you are a Christian Scientist doesn’t mean you get to come to work sick.
And it bears repeating, even to those with deaf ears, asking you about your vax status or requiring you to be tested does not violate your rights under HIPAA, or, for the most part, the ADA or Title VII. It just doesn’t.
Here in Darkansas you can expect our Trumpian Attorney General to join in the flurry of lawsuits that will be filed. You can expect the Ledge-which is permanently in session (or so it would seem)-to produce something equally idiotic. Like introducing a bill that bans OSHA enforcement actions anywhere within the borders of the Natural State or something. You wait and see. I’m guessing they will be back in Little Rock by Monday week. Besides, the holidays are coming up and those freeloaders could use the per diem to buy presents.
Joe Biden has evidently had it. The Supremes have held that protection of the community is a “paramount necessity.” That’s pretty solid ground upon which to pick a fight.
We shall see what we shall see.
