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Many Companies Now Have Mandatory Vaccination Policies: Should This Be Legal?

Walmart, Microsoft, and Tyson have vaccination mandates albeit at differing levels. Other companies stick with persuasion and cash incentives.
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Antibodies from vaccines reduce the odds of serious infection

Rising Vaccination Pressure 

Vaccination pressure is increasing across the board. With the Delta variant rising, Covid-19 Vaccine Mandates Split Corporate America.

“We did not take this decision lightly,” Donnie King, Tyson’s chief executive, wrote in a memo to the company’s roughly 120,000 U.S. employees. “We have spent months encouraging our team members to get vaccinated—today, under half of our team members are.”

Vaccine Mandates

  • Walmart requires vaccines for U.S. corporate staff and regional managers.
  • Some U.S. airlines are requiring vaccines for new hires but not existing staff.
  • Walt Disney Co.  announced last week it will require corporate and non-union hourly employees to be vaccinated. Some unions representing Disney workers said they were largely supportive of the move.
  • Cisco required that the limited number of employees working in its offices in July and August be fully vaccinated, guidance it expects to extend into the fall as offices reopen more broadly.
  • New York City announced Tuesday that people there will need to show proof of vaccination for indoor activities such as dining, gyms and events.

Peer Pressure

  • Steelmaker Cleveland-Cliffs Inc., CEO Lourenco Goncalves started an incentive program at the start of July with the goal of getting at least 75% of the roughly 25,000 employees vaccinated. 
  • Workers will receive $1,500 bonuses if at least 75% of the employees at their work sites receive the vaccine. For sites where at least 85% of coworkers receive the vaccine, the bonus increases to $3,000. The program runs through Aug. 21.

Spotlight Walmart and Disney

Walmart isn’t mandating the shots for store workers. 

Arguably, it makes far more sense to mandate vaccines where thousands of customers are going in and out than in corporate offices where things can more easily be tracked. 

The same applies to Disney and any other companies with corporate office mandates but not mandates in general.

It should be easy to see what's happening. Once the corporate office is vaccinated, the next mandate will sound like this: We are all vaccinated, now it's your turn.

Is This Legal? 

In a single word, yes. Note that public schools have long required vaccinations and courts have consistently upheld legality.

In Jacobson v. Massachusetts the Supreme Court ruled:

The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.

An exception is made in favor of "children who present a certificate, signed by a registered physician that they are unfit subjects for vaccination." 

History of Vaccinations

Jacobson v. Massachusetts was settled in 1905 and has been the law of the land ever since. 

The History of Vaccinations explains the case.

In Jacobson, the state of Massachusetts delegated to local authorities the power to mandate smallpox vaccines. Faced with a smallpox outbreak, the city of Cambridge passed an ordinance requiring all people not vaccinated within a certain time frame to be vaccinated (or re-vaccinated, if they were vaccinated too long ago), with a criminal fine of $5 for refusers. Minister Jacobson refused to vaccinate (apparently because of concerns about the vaccine’s safety), but also did not want to pay the fine. He challenged his conviction all the way to the Supreme Court. The Court upheld his conviction on the grounds that individual rights are not absolute, and states can interfere with rights to protect the public health, as long as it’s reasonable.

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School Vaccine Mandates in the Courts

The Jacobson ruling has been tested many times as recently as 2015 as noted by the Penn Journal Constitutional Law.

In June 2015, California’s governor signed into law SB277, which removed the personal belief exemption to school immunization requirements, making medical exemptions the only valid way to send an unvaccinated child in the affected categories to school. Naturally, vaccine-hesitant parents opposed the legislation. After their efforts failed in the legislature, they turned to the courts, raising arguments old and new. To date, opponents have filed five lawsuits against the new California law, all of which have failed. This Article explains why courts in the United States, which have consistently upheld school immunization requirements, are correct to do so. These requirements are supported by strong policy reasons and serve a compelling interest, since they dramatically reduce the risk of outbreaks of potentially deadly diseases. These mandates fit with our basic principles of state police power, reasonable limits on individual rights, and protecting children. They are also supported by over a hundred years of jurisprudence. Using the opponents’ arguments to identify the strongest claims against SB277, the Article explains why those arguments—including claims based in the First Amendment, in parental rights, and in the right to education—cannot stand.  

No Jab, No Job

  • It is constitutionally clear that corporations have the right to set terms of employment as long as the conditions are not discriminatory. 
  • There is nothing discriminatory about requiring every employee to do the same thing with possible exceptions for genuine medical or religious beliefs. 

That's the legal case and it is a waste of time and money to object.

Legality vs Policy

If one wishes to argue it's bad corporate policy, that's another matter. Here's a snip from the lead article.

Snap-on Inc., a Wisconsin-based high-end tools manufacturer with a largely blue-collar workforce, won’t mandate the vaccine, says Chief Executive Nicholas T. Pinchuk, because he believes such a move would backfire. 

“I don’t think the way to do it is to tell people, somehow because they don’t get the vaccine, they are flawed,” Mr. Pinchuk said. “They don’t respond to that.” 

Regardless, business owners and boards of directors set policies, not you or me. 

And here is the kicker: Pinchuk is encouraging vaccinations and giving employees time off to get them.

Republicans Inspire More to Get Vaccinated

Meanwhile, more republican leaders are on board including Senate Minority Leader Mitch McConnell.

Alabama Governor Kay Ivey said "It's time to start blaming the unvaccinated folks," for the recent outbreak. 

For discussion, please see Rising Deaths and Pleas From Republicans Inspire More to Get Vaccinated

Some of my readers are on opposite sides of this debate, but it's easy to see where things are headed: After a big stall, vaccination rates will head up.

I view that as a good thing. The only realistic debate is about how. Like it or not, the legality issue is totally settled. 

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