The Supreme Court is hearing the case on the OSHA vaccine mandate on large employers. The federal government is trying to impose a system where all employers of more than 100 people must demand proof of vaccination, or submit a weekly test. In my informal survey among friends, most employers find the idea of managing a weekly test check too onerous and are opting instead to make it a vaccine-only policy.
Facially, I find the logic ridiculous. The agency and statutory language under which this authority has been claimed by the Biden administration pretends to treat unvaccinated employees like a chemical that is so toxic, other employees must be protected from them immediately, before Congress can consider a regulation. Justice Sotomayor made the logic explicit during oral arguments. “Why is a human spewing a virus not like a machine spewing sparks?” she asked.
The logical problems with this are endless. (1) The vaccine manifestly does not prevent employees from “spewing” virus on each other. (2) Human workers are not machines, and the agency being dragooned into this process is meant to protect workers, not dehumanize them.
The number of scientifically illiterate and hysterical things said from the bench today is countless, however.
But I want to reiterate that besides being a usurpation of state legislative powers, this mandate is simply unwise.
By some estimates, 85 percent of adults in the United States have taken at least one dose of a Covid vaccine. This is an unprecedentedly quick voluntary uptake of a new vaccine. Most of the uptake was done before even one of them had full FDA approval. Of the 15 percent who have not taken the vaccine, a small and shrinking number remain uninfected by the virus entirely. With the spread of Omicron, the likelihood of hospital overwhelm ends up diminishing over time as a greater and greater share of the public acquires some level of immunity.
It is also a profoundly cowardly act. Employers are not well-equipped to judge the various pleas for medical or religious exemptions to a public-health mandate. HR is a totally improper forum for such disputes. The punishment meted out for noncompliance — loss of livelihood — is too severe. By making employers the vehicle of public-health policy, the mandate changes the relationship of all the employed to their employer. Why should an HR manager know or get to judge whether you received your vaccine in March, at an early date, or perhaps by September, upon further consideration of evidence, or at the last minute out of servile compliance with the mandate? By drafting employers, the federal government is reaching deep into the social fabric, and tearing it up.
If legislators really do think a substantial good can be achieved by a vaccine mandate, they should have the moral courage and integrity to pass such a thing themselves, with their own votes, and use the tools of law enforcement — fines and imprisonment — to enforce them.
The states themselves have broad public-health powers, and their reluctance to use them is a giant blinking neon sign that the people themselves do not find these mandates to be of urgent interest.
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