Roy Exum: The Mandates Argument

Wednesday, October 27, 2021 - by Roy Exum
Roy Exum
Roy Exum

I have taken the position that mandates of any kind that limit personal freedoms are awful. And I have watched with sorrow what has happened at Blue Cross Blue Shield of Tennessee and is now happening at CHI Memorial Hospital in Chattanooga. Good people are losing jobs all across America rather than surrender their personal beliefs. I also mourn the COVID vaccine has been divided by politics; threats from companies with over 100 employees with outrageous fines comes awfully close to extortion from where I stand.

Shannon Firth has been reporting on health policy for MedPageToday.com since 2014 and this week has attended committee meetings in Washington where our lawmakers appear dramatically different in their views (imagine that!). Shannon just posted a story that I feel is balanced and fair.

I also feel this mandate business is spiraling out of control and as “deadlines” turn into daggers, I wonder if this in the best interests of our nation right now?

Here is what MedPage Today’s correspondent posted:

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LAWMAKERS SPLIT OVER COVID VACCINE MANDATE FOR WORKERS

Witten by Shannon  for MedPage Today, October 27, 2021

Democratic and Republican lawmakers debated whether President Biden's COVID-19 vaccine mandate would help or hurt businesses and workers during a joint hearing of two House Committee on Education and Labor subcommittees on Tuesday.

Republicans argued that the new measures were a "power grab" that would exacerbate worker shortages, but Democrats saw the requirements as a win for both employers and employees.

"I hope that all of my colleagues will agree that workplace vaccination requirements are a critical tool to safely reopen our economy and protect the health of workers, their families, and their communities," said Rep. Alma Adams (D-N.C.), chairwoman for the Subcommittee on Workforce Protections.

But Republicans were not at all in agreement. Subcommittee ranking member Rep. Fred Keller (R-Pa.) said such a mandate would "put undue burdens on business owners" already overwhelmed by worker shortages.

And Rep. Russ Fulcher (R-Idaho), ranking member of the Civil Rights and Human Services Subcommittee, argued that after similar federal and state mandates were enacted, private companies began firing unvaccinated workers, which "created chaos at airports ... weakened police forces, [and] put our healthcare system in jeopardy."

"I believe that this mandate literally forces Americans to choose between their livelihoods and a deeply intrusive medical ultimatum," said Rep. Madison Cawthorn (R-N.C.), who described the mandate as "nothing short of subsidized medical apartheid."

He also introduced a bill, the Justice for All Businesses Act or "JAB Act," which would bar the Secretary of Labor from using government funds to write, enact, or enforce a rule mandating that employers require COVID-19 vaccination.

In September, President Biden announced that his COVID-19 Action Plan included an emergency temporary standard from the Department of Labor's Occupational Safety and Health Administration (OSHA) that would mandate that all businesses with 100 or more employees require vaccination or weekly COVID testing. Businesses that do not abide by the mandate could face fines up to $14,000.

Currently, 69% of U.S. adults are fully vaccinated.

OSHA submitted a draft of the emergency regulation to the White House's regulatory office in mid-October, and the final standard is expected soon.

LESSONS LEARNED FROM PRIOR MANDATES

Lawmakers on both sides of the aisle used the vaccine mandate for healthcare workers as evidence both for and against the forthcoming rule.

Rep. Pramila Jayapal (D-Wash.) recalled how during a recent hospital visit her husband was cared for by a phlebotomist who had received her first COVID-19 shot that morning.

While anti-vaccination advocates are the voices making headlines, about 11% of the unvaccinated are simply "vaccine-hesitant," she said. This appeared to be the case with the phlebotomist, who "agreed to do it, because it was required."

But Rep. Elise Stefanik (R-N.Y.) shared a less rosy picture.

When former New York Gov. Andrew Cuomo (D) issued a similar mandate for healthcare workers in his state, it forced Lewis County General Hospital in Lowville to temporarily close down its maternity ward due to workforce shortages.

"This is robbing a rural community of a vital healthcare service and frontline healthcare workers of their ability to provide for their families," Stefanik said. She also highlighted a survey from the Society for Human Resource Management in which 89% of employers said some of their workers will resign over the mandate.

CAN OSHA IMPOSE VACCINE MANDATES?

The standard for emergency temporary orders requires that the risk to workers be "grave" and "necessary," explained Sidney Shapiro, JD, of Wake Forest University School of Law in Winston-Salem, North Carolina.

He explained that, because workers can become seriously ill or die from COVID, the risk is "grave," and OSHA does have the legal authority to issue an emergency temporary standard; it is also "necessary" because of the likelihood that workers could die from exposure in the roughly 6 months it would take to implement a permanent standard.

Not only does OSHA have the authority to require vaccination or testing, it is "legally mandated" to do so, because the agency is required "to adopt the standard that most adequately assures that workers will not die or become seriously ill," Shapiro said.

But Scott Hecker, JD, senior counsel to the Workplace Safety and Environmental Law Alert Practice Group of Seyfarth Shaw LLP, based in Washington, D.C., took a different view, questioning whether OSHA was the appropriate entity to "police the nation's public health."

With regard to the necessity of an emergency standard, he questioned the timing: "Why only now" is COVID-19 being viewed as a "a grave workplace danger across all sectors in all businesses for more than 100 employees?"

By "trumpet[ing] the success" of other more "narrowly focused" efforts, the Biden administration has actually undermined the rationale for further mandates, he added. "So, it's hard to say that the plan ... is working and still shows the necessity for an (emergency temporary standard)."

Rep. Suzanne Bonamici (D-Ore.), chair of the Civil Rights and Human Services Subcommittee, pointedly reminded committee members of the 700,000 Americans who have died from COVID, and noted that the "overwhelming majority" of people hospitalized in the most recent surge were unvaccinated.

Responding to concerns over whether the agency could govern a public health issue such as vaccines, Shapiro said that "OSHA was charged in 1971 to protect workers from disease in the workplace, and has been in the health protection business since 1971," referring to the Occupational Safety and Health Act of 1970.

NATURAL IMMUNITY

Republican committee members also raised questions about potential exemptions for people with natural immunity.

Rep. Lisa McClain (R-Mich.) highlighted a study from the National Science Foundation that found that people who were unvaccinated who had previously been infected with COVID "could expect immunity against reinfection anywhere between 3 months and 5 years," and a Yale University study suggesting that antibodies following SARS-CoV-2 infection could protect individuals from reinfection for "on average for at least 16 months." (An author of the Yale study later stated that previous infection offers "very little long-term protection" and encouraged anyone naturally infected to get vaccinated.)

Under these circumstances, she asked Hecker, "Does it make sense to force someone to take a vaccine when they've already ... recovered from COVID-19?"

Hecker hedged, answering only that the CDC has a different view and that he doesn't expect OSHA to take previous infection into consideration.

Rep. John Yarmuth (D-Conn.) countered McClain's argument by citing a Morbidity and Mortality Weekly Report study published in August, which found that those previously infected with COVID who were not vaccinated were twice as likely to be reinfected than those who had been fully vaccinated.

"So, it seems that ... real-life examples indicate pretty strongly that you are much safer and much more protected from the virus ... if you've been vaccinated, even if you had [COVID] before," he pointed out.

RELIGIOUS BELIEFS

Doron Dorfman, JD, of Syracuse University College of Law in New York, explained that employers must "provide reasonable accommodation to employees sincerely holding religious beliefs," as long as they do not create an "undue hardship" for the employer.

However, Dorfman also said he did not know of any religion that prohibits vaccination and that employers have the right to conduct a "limited inquiry" to "tease out religious beliefs."

If an employee is opposed to a vaccine because fetal cell lines were used in development, but the employee also takes a medication that uses the same methodology, then it's not a "sincere religious belief," he noted.

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royexum@aol.com


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