MCCUTCHEN And MCCUTCHEN: Company Vaccine Mandates Are Not Only Legal But Also Make Sense

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Editor’s note: We endeavor to bring you the top voices on current events representing a range of perspectives. Below is a column arguing that company vaccine mandates make sense. You can find a counterpoint here, where Charlie Kirk argues that private companies should not mandate coronavirus vaccines for employees. 

When President Trump predicted the United States could deploy a COVID-19 vaccine within a year, his cheery optimism was greeted with widespread skepticism. And yet, he turned out to be right. We now have not one, but three authorized vaccines. This is a scientific achievement on par with the Apollo program.

You would expect, given both the prevalence and seriousness of COVID, that people would be lining up for the vaccine. Good news: to a large extent, they are. About two-thirds of Americans have been vaccinated, and only about 15% are adamantly opposed to it.

And yet today we are faced with controversies over vaccine mandates at school and work.  Ideally, such mandates would be unnecessary, because people would voluntarily get the vaccine, both for their own health and the health of others. But the rate of vaccine uptake has slowed, and there are concerns that a core of vaccine refusers will keep COVID alive. Thus, the mandate debate.

The debate is not a legal one, really. The Seventh Circuit Court of Appeals recently rejected a constitutional challenge to an Indiana University mandate that all students and employees returning to campus be vaccinated, relying on a 1905 Supreme Court decision holding that a state may require all members of the public to be vaccinated against smallpox and sustaining a criminal conviction for refusing to be vaccinated. The decision was written by Judge Easterbrook, a Reagan appointee, and joined by two Trump appointees (Judges Scudder and Kirsch). Another Trump appointee, Justice Amy Coney Barrett, denied emergency relief from that decision. Federal employment laws do not prohibit a private employer from requiring all employees to be vaccinated against COVID-19, so says the Equal Employment Opportunity Commission (EEOC), provided there are individual exceptions for disability or religious accommodations.

We will be seeing more universities and employers adopting mandatory vaccination policies; local and state governments may not be far behind. Vaccine passports as adopted in New York City should also survive legal challenge.

Just because mandates may be imposed, though, does not mean that they should. Objections to vaccine mandates are not crazy. Refusing unwanted medical treatment based on bodily autonomy – my body, my choice – has long been a rallying call for abortion advocates. Denying the reasonableness of that argument for anti-vaxxers seems hypocritical.

Before COVID-19, parents fearing childhood vaccines caused autism seemed to be winning the political debate, despite the lack of medical evidence, with some school districts routinely granting exemptions to vaccine requirements. They were concerned parents, not dangerous and subversive spreaders of misinformation who should be banned from social media. Vaccination fears should be acknowledged; anti-vaxxers should be persuaded with science, but they should not be insulted or demonized.

Employer policies may require all employees to either provide proof of full vaccination or a request an accommodation. Under such a policy, employees can receive any authorized COVID-19 vaccine. Proof of vaccination can be a CDC vaccination card or similar verification. Some employers are providing employees with bonuses or paid time off to get vaccinated. Employers can also battle vaccine hesitancy by providing information about the benefits and safety of COVID vaccines.

The EEOC suggests that, as a reasonable accommodation, employees who seek an exception from a vaccine mandate “might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.”

This seems wise, as it should result in most employees being vaccinated while allowing reasonable medical and religious accommodations. Through such policies, the employer ensures that more employees are comfortable coming back into the office. Getting back to work is good for employers, employees, and the economy. Fewer employees with COVID-19 means lower medical costs for the employer. Most importantly, through employer mandates, we should see an increase in vaccination rates throughout the county without more troubling government mandates – troubling because we can always choose to work for an employer without a vaccine mandate but few who fear vaccination can afford to move out of a state or the country.

It also might be useful for us to take a step back and ask a broader question:  why are some hesitant, and why do some seem stubbornly resistant to these vaccines? Part of it may be due to anti-vax sentiment in general. Some people don’t like vaccines, and this is just another example.

But it may go deeper than that. Polls suggest that vaccine hesitancy is most common among the less educated, hard-core Republicans, and African Americans. What these groups have in common is a shared lack of social trust in America’s elite institutions.

And why should they? Recall when the COVID pandemic began, trusted sources told us not to wear masks, not because masks had been shown to be ineffective but because they didn’t want people hoarding protective equipment needed by medical professionals. It was a “noble lie” intended to induce certain behaviors. Now they act as if masks were magic talismans that can ward off COVID, despite science showing marginal usefulness.  The CDC and WHO had us obsessively cleaning surfaces long after it was clear that surfaces were not an important COVID vector. And, of course, we had closed beaches amidst BLM protests – which somehow didn’t transmit the virus because their cause was just. And maybe it’s right that outdoor transmission is rare because the virus gets dispersed so quickly – but if that’s true, why didn’t they open parks and beaches, in addition to tolerating protests?

Many of our political leaders have engaged in all sorts of hypocrisy: swanky parties with fellow politicos. A recent example being Obama’s birthday party.  I realize one only turns sixty once, but for the good of the country couldn’t he have postponed the big bash until he turned 61?

Here’s a wacky idea.  If our elites want the trust of the American people, maybe they should behave in a trustworthy way.  Instead of focusing on authoritarian solutions, earn the trust of the American people – all of them.

Tammy McCutchen is a former Department of Labor appointee who fled the beltway for a better lifestyle. Her husband Pete McCutchen is a fellow beltway refugee. Both are vaccinated and living mask free in Tennessee.