Lessons from Employer Vaccination Mandates

The U.S. Food and Drug Administration gave its blessing to a COVID-19 vaccine for use on a non-emergency basis. Now millions of Americans could face employer mandates: get your shots or lose your job. The $64 question is whether the courts will let employers make vaccination a condition of employment.

In Alexander Hamilton’s America the answer is yes.

In the early days of the American Republic, Thomas Jefferson and Hamilton offered competing visions for the future. Jefferson advocated a country built on a human scale. He urged widespread land ownership so that Americans could farm, engage in cottage industries, and participate in local markets. Jefferson wanted the people to be independent of their “betters.” He realized that large employers could pressure wage earners to conform their political opinions and behavior to the boss man’s liking.

Hamilton embraced industrial America

Hamilton, on the other hand, envisioned America not on a human scale, but on an industrial one. Rather than small cottage industries, Hamilton supported large manufacturing and banking operations. That huge corporations or powerful industrial barons could exert pressure on commoners did not trouble him. He made no secret of his admiration of the British monarchical system and distrust of the common man.

Looking at modern America, we know which vision triumphed. Big Business employs millions of Americans and dictates conditions of employment. Wall Street, rather than the Deplorables’ Main Street, decides who must be vaccinated.

But what about rights? After all, no vaccine has ever been rushed to the market so fast, and many Americans are concerned about long-term health effects. Surely, one of the agencies in the federal alphabet soup of the Administrative State can help.

The relevant agency would seem to be the U.S. Equal Employment Opportunity Commission (EEOC). But as its website states, it “is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information.”

In other words, unless an employee belongs to a specifically protected class and faces discrimination based on that classification, don’t call Big Brother.

The only caveat, the EEOC says, is that employers must offer reasonable accommodations for employees with disabilities or religious beliefs that do not allow for vaccinations. The employer might have to let such employees work at home or wear masks and keep social distance at the office instead.

Precedent for requiring vaccines

As for state laws, a precedent exists to permit the states to require vaccinations. For example, in the early 1900s the Supreme Court upheld a law mandating smallpox vaccinations for all inhabitants of Cambridge, Mass. (Jacobson v. Massachusetts,1905). The high court would likely follow this precedent.

In most states, employers can fire employees for any reason not specifically forbidden by law. And the EEOC has made clear that an employer vaccine requirement is not illegal under federal law. Unions possibly could protect employees pursuant to collective-bargaining agreements, but only about 10 percent of the workforce is unionized.

Though the news is not good, this issue provides an opportunity to rethink existing structures. While all 328 million Americans cannot return to the land and sustain themselves as Jeffersonian farmers, there are other options.

Small business a salvation?

Rather than working for a global corporation, Americans can start their own businesses. Recent statistics show that during the pandemic business startups grew from 3.5 million in 2019 to 4.4 million in 2020. If operating a small business is not a person’s forte, how about working for one? Which company is more likely to listen to employee concerns about vaccinations: the global monstrosity with 100,000 employees or the startup company with 12 employees who all live in the same town?

From the early days of the Republic we traded life on a human scale for life on an industrial one. It does not have to be this way. Issues surrounding employer vaccine mandates should cause us to reexamine how we live and work. There is another path; we must simply exercise the initiative to explore it.