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Legal, Political, and Historical Perspectives on Biden’s COVID Vaccination Mandate
Last week, details of President Joe Biden’s COVID vaccination mandate went public. The requirements include a deadline for Jan. 4 where private companies with 100 or more employees must ensure employees have been vaccinated or test negative at least once a week. As soon as the details were released, attorneys general for Kentucky, Tennessee and Ohio filed a lawsuit to stop the vaccine mandates.
As reporters continue to report on the news, three Syracuse University experts can help with the legal, political and public policy aspects of the developments. Please see the names and details below. Contact Ellen James Mbuqe, director of media relations at Syracuse University, at email@example.com or 412-496-0551, to schedule an interview
Doron Dorfman, associate professor of law at Syracuse University, is an expert in disability law and health law. He was invited to speak to the House Committee on Education & Labor on the topic “Protecting Lives and Livelihoods: Vaccine Requirements and Employee Accommodations” which centered on the vaccine mandates for employers. In his remarks to the committee, Prof. Dorfman said:
“Work law in the United States operates under a simple default governance rule, that of the employer’s prerogative: An employer holds sole authority in the workplace unless regulated or is contracted otherwise (either through collective bargaining agreements or individual contracts). Therefore, it is the employer’s prerogative to hire and terminate at will, unless the employee in question is protected under a civil rights law such as Title VII or Title I of the ADA.”
“The OSHA COVID ETS (emergency temporary standard) as it applies to private employers does not add to or change the legal standard allowing vaccine requirements,” said Dorfman. “As nothing in antidiscrimination law prevents employers from maintaining a safe workplace, private employers have had the discretion to initiate vaccine requirements on their own. Indeed, as of October 2021, one in four private employers has already initiated a vaccine requirement and an additional 13% of private employers plan to put such a requirement in place in the coming months. What the proposed OSHA COVID ETS intends to do is to make this practice uniform and apply the vaccine requirement to all covered employers as part of the efforts to curb the pandemic.”
At Syracuse University, Dorfman teaches classes on health law, employment discrimination, and disability law. He has been interviewed in several news outlets on the legal issues of health mandates including MedPage Today, Fortune, Bloomberg Law, Yahoo Finance and USA Today.
The Politics of Vaccine Mandates
Last month, Texas Governor Greg Abbott issued an executive order banning any entity in the state from enforcing a vaccine mandate. Florida Governor Ron DeSantis said that he will challenge in federal court and through legislation any vaccine mandates placed on employers by the federal government.
Syracuse University Professor Shana Gadarian and chair of the political science department at the Maxwell School, says that the Biden administration has a clear legal precedent to enforce vaccine mandates. So what is motivating these governors and political appointees to engage in what could be a protracted and expensive legal battle?
“These governors are most likely looking to the next election cycle. Both Abbot and DeSantis could both be jockeying for 2024. In the past, candidates would need to position themselves as middle of the road. But today, they are in competition with former president Trump, who could still run again,” said Gadarian. “The Republican party has made it part of the conservative ideology to uphold the value of individualism. During the pandemic, that has translated into holding personal choice and freedom over the beliefs of public health and collective safety.”
Gadarian, a political psychologist, has tracked American attitudes toward the pandemic since it began. She is the co-author of several papers tracking these attitudes and will have a book out next year about these results. In one of her most recent papers “Partisanship, health behavior, and policy attitudes in the early stages of the COVID-19 pandemic,” she and her co-authors found that political partisanship – and specifically between Republicans and Democrats – fueled how Americans responded to the pandemic through behaviors and policy preferences.
Gadarian points out the irony of Republicans fighting vaccine mandates or questioning the safety of the coronavirus vaccine when it was created by a Republican administration under President Trump.
“There was a moment when Republicans could have touted the vaccine as unlocking economic recovery or praising how it was quickly developed to fight the pandemic. However, Trump politized it early on. He did receive the shot, but didn’t do it publicly like other world leaders. He publicly accused Pfizer of delaying positive vaccine trial results until after Election Day. The Republican Party could have embraced vaccinations as a central Republican achievement, but it chose another path,” said Gadarian.
Gadarian is also the co-author of the book author of “Anxious Politics: Democratic Citizenships in a Threatening World.”
The History of Fighting Health Mandates
Syracuse University assistant professor Kyla Garrett Wagner, who studies the relationships between public health and the First Amendment, says that laws and protests against masks and vaccines are part of a long history of people challenging public health mandates.
From seatbelt laws to anti-smoking ordinances to requiring helmets when riding a motorcycle, there are precedents to people fighting public health and safety laws, she says.
“What do mask and vaccine mandates have in common with smoking bans and seatbelt laws? They all are examples of lawful government regulation to protect public health,” said Wagner. “In a country that prioritizes individual liberties more than most, it can seem questionable when U.S. law mandates and/or outlaws specific health behaviors. “
“But in fact, it’s quite commonplace for both state and federal governments to compromise and even sacrifice individual liberties for the purposes of protecting public health. Why? Because, sometimes, that’s what the pursuit of Life and Liberty demands – the compromise and sacrifice of one for the protection of the other,” said Wagner.”