Five Impacts of Judge Upholding Mandatory-Vaccine Policies

Published on

Five Impacts of Judge Upholding Mandatory-Vaccine Policies; On Higher Education, Public Accommodations, and Negligence Law Suits

Get The Full Ray Dalio Series in PDF

Get the entire 10-part series on Ray Dalio in PDF. Save it to your desktop, read it on your tablet, or email to your colleagues

Q1 2021 hedge fund letters, conferences and more

The Impact Of Mandatory-Vaccine Policies

WASHINGTON, D.C. (June 14, 2021) - Saturday's ruling by U.S. District Judge Lynn Hughes, in Bridges v. Houston Methodist Hosp., that a hospital's policy of requiring all of its employees to be vaccinated against COVID-19 is legal, and advances an important public policy, is bound to have major impacts in areas far beyond hospitals and other health care providers, says public interest law professor John Banzhaf, who correctly predicted this result.

FIRST, it provides a strong precedent for other existing and yet-to-be-filed law suits, and proceeding before anti-discrimination agencies, because it was a well reasoned opinion written by a federal (rather than a state) court judge, it reached the same conclusion for the same reasons as many impartial law professors and other legal experts, and is based upon the employment law [so-called "employment at will"] controlling in most states for all employers, not just hospitals.

Under that doctrine, explains the professor, an employer can generally fire a worker for any reason or for no reason at all, provided the termination is not based on a few factors such as race or gender.

So, since an employer can fire a worker who has sex outside of marriage or who smokes even off the job (as some companies have long done), or for failing to eat an apple a day to keep the doctor away (fortunately only a hypothetical), it can certainly fire an employee who refuses to be vaccinated since the latter is backed up by compelling scientific and medical evidence fully accepted by virtually all experts.

Dealing With Unvaccinated Employees

SECOND, the decision will provide increased legal justification for companies which are taking somewhat less intrusive measures to deal with unvaccinated employees - e.g., requiring them to disclose this status, to wear masks while in the office or on the job, etc. - as an increasing number of employees are, according to the Wall Street Journal's "Companies Push Employees to Prove They Are Vaccinated."

If a company can fire an employee for refusing to show proof of vaccination, it can certainly employ less intrusive measures to protect others from infection by COVID-19, argues Banzhaf, who notes that hospitals have routinely required employees to be vaccinated for certain diseases, wear masks in certain areas (e.g., in operating rooms), and other companies force employees to wear respirators in certain situations.

THIRD, it will provide support for and embolden colleges and universities to require that students, in addition to faculty and staff, receive vaccinations before returning to classrooms and dormitories in the fall.

Hundreds of institutions of higher education have already adopted such requirements because college campuses have been proven to be a major incubator for the spread of COVID-19; a risk not only to others on campus, but also to many of their family members and other outsiders, especially those past middle age.

Although the law regarding students isn't quite the same as the employment-at-will principle for workers, colleges have wide discretion regarding rules and requirements for their students, says Banzhaf, noting that many have traditionally required vaccinations for several other diseases, and that some require students to refrain from premarital sex or even the use of certain derogatory words or phrases, even far from campus.

Usiness Decisions Based Upon Vaccination Status

FOURTH, it provides additional support for the legality of measures increasingly being adopted by some places of public accommodation - such as cruise ships, theaters, sports venues, etc. - to bar or restrict persons who have not been vaccinated.

If companies can lawfully mandate "No Shoes, No Shirts, No Service" which in many situations has little support as a public health measure, and "Gentlemen Must Wear Ties and Jackets" which does nothing to protect other patrons, it would certainly seem that this judge's new ruling - that business decisions based upon vaccination status serve a valid public purpose and do not violate anti-discrimination laws - would encourage other public accommodations, including some bars and restaurants, to bar, at least in the near future, the shrinking percentage of unvaccinated patrons, or exile them to a separate section.

FIFTH, as more and more companies, as a result of this ruling, require employees to be vaccinated, those which fail to do so may be sued under the doctrine of negligence which requires businesses to take reasonable steps and measures to protect their customers from reasonably foreseeable risks.

As more and more companies require employees who interact with the public to be vaccinated, the practice is more likely to be seen by judges as one which is reasonable, argues Banzhaf, who notes that total bans on smoking in public places, which in the past were often seen as unreasonable, gradually came to be regarded as reasonable by judges who ruled against companies which continued to permit smoking.

Saturday's decision is also important because it reminds us that it is not the role of judges to decide whether or not a business policy is effective and/or backed up by sufficient scientific and medical evidence.

FDA's Approval Of The Vaccine

The FDA approves a wide variety of drugs for different uses under many different standards (e.g., for over-the-counter, prescription only, off-label, emergency, etc.), so whether it is more or less effective than other vaccines (e.g., for the flu), may cause rare side effects, or how long clinical trials should last, is up to the agency and its expert panels, not for judges to weight and possible second guess.

For example, if hypothetically there were a new similarly infectious disease which killed 20% of all who became infected, the FDA would probably approve for emergency use any vaccine shown to be 90% effective in preventing death, even if clinical trials lasted only weeks rather than months, Banzhaf suggests.

Finally, the professor says that the judge put to rest the argument that vaccine mandates by hospitals are illegal, because federal drug law requires voluntary consent, by determining that requirements of informed consent apply only to those administering the drugs pursuant to the FDA's authorization, and not to third parties such as hospitals, universities, or private businesses.

No one is being vaccinated without their consent, but private third parties are not bound by this federal law, so businesses are not required to employ people who have not been vaccinated against COVID-19 (or other diseases as many schools and medical institutions have long required) or to refrain from asking about vaccination status, argues Banzhaf.

This is an important decision with many ramifications which is likely to save many lives, the professor argues.