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Will feds get The Vaccine — or sue instead?

August 3, 2021

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The pandemic is like the worst house guest ever. It departs only after rendering its hosts haggard. At last it looked like things might get back to normal. But no. The guest reaches the end of your block, turns around, and comes back to visit for Lord-knows-how-long. And you’d just squeegeed the shower door and vacuumed.

That’s kind of where the nation finds itself. A fresh vocabulary comes with what you might call the echo pandemic. Breakout infections. Delta variant. Vaccine mandates.

Among the big national questions now: whether employers can require vaccinations as a matter of employees keeping their jobs. Federal employees have gotten the mandate from their employer. New York State already imposed a vaccine mandate on its employees, who otherwise must undergo weekly testing. Earlier, the Department of Veterans Affairs ordered all medical personnel to become vaccinated.

Dealing with COVID has become more complicated. Although not everyone followed them, guidelines a year ago basically kept everyone masked nearly everywhere, with people staying away from one another. Now people face an ever-shifting matrix of guidelines. Variables include whether you’re vaccinated, whether vaccinated people can carry and transmit the disease even if they don’t get sick, and whether the vaccines work against emerging strains. Should you mask indoors? Outdoors? Should you go anywhere? Which vaccines are best? Do people need booster shots? The list runs on and on. People are mostly confused, and tuning out much of it.

Mandatory vaccination orders resemble in some ways a latter day non-smoking mandate. When do personal choices cease to be purely personal but instead affect others? We’re not willing to outlaw smoking, so the societal compromise dictates no smoking in the office. Need a drag? Go outside and stand around the cigarette urn 50 feet from the door.

But the analogy frays when it comes to vaccination. Light up indoors, and the smoke is there. As for the virus, not all the unvaccinated will carry COVID or get sick. Some of the vaccinated might carry the virus and give it to someone else. Unlike smoke, you can’t see or smell a virus.

In an interview, attorney Dan Meyer, the managing partner of the law firm Tully Rinckey, pointed out there’s a reason half the nation remains unvaccinated. Some of that half don’t want to be. Their refusal might be for religion. Maybe they have some other medical condition that makes vaccines dangerous to them. They might not trust vaccines because the products haven’t had the full FDA vetting. A subset of people suspect the vaccines are made of rat poison or gorilla perspiration. Something escaped the Facebook censors. Still, others don’t believe the virus is all that dangerous to most people in the first place.

Meyer said there’s no Constitutional reason the government can’t compel employees to vaccinate. But he said he expects challenges on religious grounds or citing the Rehabilitation Act of 1973. That law prohibits discrimination on the basis of disability or pre-existing condition. Conditions, Meyers said, include age or a chronic weight challenge. Employees would have to document that there conditions make them susceptible to virus exposure or to vaccination ill effects. The agency would have to provide reasonable accommodation — like telework.

More difficult will be cases of perfectly healthy people who simply aren’t vaccinated. “The physically fit person who is a-religious,” Meyer said, “is going to be very hard to protect.”

So why not just drop into CVS and get the darn vaccine, for Pete’s sake? That brings us to those whom Meyer described as having “a reasonable belief in the unsafe nature of the vaccine.” Not entitled to dispensation based on disability — does the government fire them?

The administration won’t fire people who don’t get vaccinated. Thus the frequent testing requirement. Or telework. If telework ends up the domain primarily of the unvaccinated, though, a strange and unhealthy office dynamic would develop. Teleworkers would comprise a virtual lepers’ island, stigmatized slice of the workforce. Similarly, having the unvaccinated slice of the workforce regularly report to some internal clinic to have their noses swabbed — that, too would be strange.

A nice, orderly return to the office? Forget about it. Ladies and gentlemen, our long national nightmare is not over. Get set for a new phase in the weirdness.

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