COVID-19, Vaccinations, and Masking

I am enthusiastically pro-vaccination. PLEASE GET VACCINATED!

The very short version of my policy on these cases is this:

Unless you have a documented medical reason to not be vaccinated, I will not assist you in avoiding vaccination mandates.

Here’s a more detailed description of my policy and some of my reasons for it.

COVID-19 has been absolutely awful for America and the world. Its initial phases saw mortality rates of as high as 3% of reported cases; by now, over one in 500 Americans has died of it. Two in 500 Americans have been intubated because of it; there are a lot of people who have indicated in their medical directives that they would rather be allowed to die than suffer intubation. Chances are good that you personally know at least one person who has either died or suffered tremendously from this disease; if not, consider yourself very very lucky. I personally know three people, including a former client, who have died of COVID, and three more who have had to be intubated. Treating COVID patients has displaced the availability of medical resources such that people with myriad other medical conditions cannot get treatment timely. It has been awful for everyone, socially and economically. It has been awful for my law practice.

And thanks to the emergence of the Delta variant, we’re looking at new general masking and distancing orders. I’m tired of it too. We all are. But this isn’t done yet.

There is only one way we can get back to normal. It’s only going to happen when an overwhelming number of people become vaccinated. That is Plan “A” and there is no Plan “B.” (Note that the lack of a Plan “B” does not mean Plan “A” is bad or we should not do Plan “A.” The lack of a Plan “B” makes the success of Plan “A” that much more urgent.) Plan “B” certainly cannot be to shrug it off and say “everyone’s going to get it eventually” because the disease has an unacceptably high lethality rate, and treating it to make it survivable for those who suffer its worst effects consumes so many resources.

Vaccination does not provide “immunity” as is popularly imagined. Rather, if you are vaccinated, you are less likely to contract the disease, your immune system will fight the disease faster and therefore reduce your ability to transmit the disease to others, and you are less likely to suffer serious symptoms and require hospitalization. It might more properly be called “heightened defense.”

Vaccination appears to assist the overwhelming number of people reach this state of heightened immune defense. It seems to do so to a degree at least different than, and according to some reports better than, natural exposure to the live virus itself. At minimum, it doesn’t hurt.

Employers, both public and private, are mandating that their employees be vaccinated against COVID-19 as a condition of returning to the physical workplace, which for many employers is the only practical way to employ people.

This is legal. It violates no anti-discrimination law nor any privacy protection law of which I am aware. There are very few exceptions. This is not just my opinion: here is a link to the EEOC’s website offering detailed guidance about vaccine mandates and anti-discrimination law.

Some people have asked me, “But what about my Constitutional rights?” First of all, if you have a private employer, the Constitution is almost certainly not an issue. That’s because the Constitution limits the powers of the government. It doesn’t directly give you any rights as against other private individuals. So your relationship with your private employer is not a Constitutional matter. If you are employed by a governmental entity, there is a Constitutional issue potentially in play, and that’s incorporated into the statutory framework of your rights under anti-discrimination law. Therefore, what we’re really looking at is whether a mandate violates laws like Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Religious Freedom and Restoration Act, or the state law equivalents of these landmark Federal laws.

Secondly, the U.S. Supreme Court has held, for over a hundred years, that the government can mandate universal vaccination for adults, with no exceptions. Jacobson v. Massachusetts, 197 U.S. 11 (1905). It’s true that the Jacobson case came before a lot of other Constitutional jurisprudence, and in 1905 we thought of individual rights in ways that are different than we do today. But, similar reasoning is being applied today, even by the newest member of the High Court, Justice Amy Coney Barrett.

Other people have concerns about medical privacy. They frequently invoke a law called HIPAA, the Health Insurance Portability and Accountability Act of 1996. HIPAA does not provide sweeping privacy protections for all medical information as against all entities and individuals. It relates principally to people whose jobs inherently involve having access to medical information, who are mostly found employed by medical insurance companies. There are other privacy laws that potentially apply within the workplace, but HIPAA basically only applies to insurers and their agents. Most importantly, if you are going to claim a medical exemption, the ADA and its state law cognates have very specific rules about what employers can inquire about as part of the interactive process. It generally doesn’t work out well for the employee to be cagey about these.

And I heartily approve. If you want to know more about my reasoning why, I explain myself in detail in my firm’s blog. I am not particularly interested in a debate about the subject. Vaccination is not just something the Constitution permits, it’s a good idea and it’s plan “A” for getting out from under the oppressive effects of this potentially deadly virus — and so far, the aggregate of medical science globally hasn’t yet found a plan “B.”

If you are an employer:

  • I’ll help you create policies to mandate vaccines in the workplace, appropriately informing employees of the consequences of failure to provide proof of vaccination. (See 21 U.S.C. § 360bbb-3), and help guide you through the interactive process of employees who make requests for exemptions.
  • If you want to make policies which discourage vaccinations, masking, social distancing; or if you want to challenge governmental mandates or encouragements for them, I’ll suggest you find a different lawyer to assist you with those things. Perhaps we might work together on something else in the future.

If you are an employee:

  • If you are one of the roughly .001% of people who have a physiological condition such as an autoimmune disorder or a past history of anaphylaxis with other vaccines, such that you are a medically unsuitable candidate for vaccination, I will assist you with an interactive process with your employer, IF you have documentation from a reputable M.D. or D.O. that you have such a condition. If that describes you, you may wish to consult this website to start thinking about what reasonable alternatives to vaccination might exist consistent with the essential functions of your job.
  • If you want to sue for wrongful termination, discrimination, or other similar kinds of claims because your employer has announced a vaccination mandate or termianted you for not meeting a mandate, I’ll suggest you find a different lawyer to assist you with those claims. Perhaps we might work together on something else in the future.
  • If you want to present a claim for a religious exemption, I’m sorry, but I’ve made a business decision to not take on work of that nature. That doesn’t mean I don’t respect your religious beliefs (the contrary is true — freedom of religion is something that is fundamental to the American culture and our law) and it is not a reflection of my opinion of the merits of your claim. It’s a decision I made independent of any individual case.
  • Should you wish to present a challenge to the government, at any level, to vaccination or masking madates, once again, you should seek a different lawyer to assist you with those claims.

If you have not done so already, please get vaccinated at your earliest opportunity. We’re all counting on you!

What About Masks?

  1. There is substantial and credible empirical evidence that masking slows the spread of COVID-19.
  2. If everyone were to get vaccinated, we wouldn’t need masks.
  3. Should you know of other better means to reduce transmission rates of a highly contagious virus, the medical establishment and reasonable employers are quite ready to listen. Masks aren’t perfect. But they’re the best tool we’ve got available.
  4. Yes, it’s sometimes unpleasant to wear a mask. But not to put too fine a point on it, having a respirator tube inserted into your lungs is a lot more unpleasant. Worse, your refusal to wear a mask may impose the burden of that respirator on another person. Maybe your children or your parents. So please do what you can to reduce the risk of transmission and wear a mask when you are asked to. Whether by your employer, a transportation provider, a landlord, the government — they don’t hurt, and they make things less risky.
  5. I’ve flown cross-country wearing a mask. Chances are very good that you can too. No, you don’t have some kind of a right to see my face. But if it’s important to you that we live in a society where people can regularly see one another’s faces in social interaction, universal (or at least near-universal) vaccination is how we get there.
  6. Employers can make employees wear uniforms. An employer can make an employee and independent contractors and vendors wear and use safety gear where it is appropriate to do so. So yes, an employer can make an employee wear a mask.

So if you don’t like wearing a mask at work, you don’t have to like it but yes, you do have to wear it anyway. The ultimate way out of masking is when general vaccination levels reach a very high percentage. So if your objective is to not have to wear masks at work, you need to help encourage everyone you can to get vaccinated.

(Updated since original publication.)

Images taken from public domain collections at the U.S. Library of Congress, including: Preparing the arm for the injection of Typhoid Vaccine, at https://www.loc.gov/resource/anrc.04089/; Nurse administers hypodermic to wife of farm worker who lives at the FSA (Farm Security Administration) migratory labor camp mobile unit, at https://www.loc.gov/item/2017789333/; and A graduate nurse (right) watches student Susan Petty prepare a hypodermic for a patient, at https://www.loc.gov/item/2017694542/.