Prof Demanding Exemption From Vaccine Mandate Likely To Fail; Ruling Would Endangers Mandates by U.S. and Many Private Companies
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Law Professor Demands Exemption From Vaccine Mandate
WASHINGTON, D.C. (August 4, 2021) – A law professor has demanded an exemption from his university’s requirement that he either get vaccinated, or wear a mask to teach, because, he claims, his prior bout with COVID makes it unlikely that he will transmit the deadly disease to others.
But any ruling in his favor would undercut similar requirements imposed on federal workers, onsite federal contractors, and by many universities and private companies to protect others around them from contracting this deadly disease, as well as be contrary to several prior decisions, says public interest law professor John Banzhaf. He offers no fewer than 10 reasons why he believes the professor will not succeed.
ONE – Courts tend to be extremely reluctant of second guess, much less override, decisions based upon medical judgments, especially those made by major universities with substantial expertise. Unless there is a reasonably clear fundamental right (e.g., freedom of religion) involved, judges know they generally should not judge and possibly override such medical decisions.
TWO – Since the science is obviously unclear, it’s wise and prudent for the university – and therefore judges – to err on the side of caution, safety, and protection rather than risking the lives and health of others. For example, only in the last few days have we come to appreciate that even people who had been fully vaccinated, and therefore had amble antibodies, can and do nevertheless transmit COVID to others.
If they can do this, it is reasonable to suspect – and therefore to be concerned – that people who have antibodies from a prior case of COVID can likewise transmit it to others. Indeed, and perhaps closer to this professor’s situation, we also know that even people who have had COVID can contract it a second time. So this professor likewise might have a relapse/breakthrough and therefore endanger others on campus.
There appears to be no definitive scientific and medical determination that a patient who has recovered from COVID, and still has X level of antibodies, cannot possible transmit the disease to others, either now or in the near future.
Making Individualized Assessments
THREE – For any system designed to deal with thousands of people, requiring those administering it to make individual judgments in each case would make any such system too expensive and therefore unworkable.
Forcing a university to make individualized assessments of every professor (as well as all staff members and students, since the same rule should apply to all) who claims to have had COVID, and, more importantly, claims that he still have enough antibodies to prevent any spread to anyone, is simply not economically possible and workable.
FOUR – Many safety and health protocols must, to a certain extent, be arbitrary – in the sense that they cannot test for and make exceptions in many individual cases. For example:
- To fly internationally, one must test negative no more than 72 hours before the flight (or the day of the flight). That means that we cannot make an exception, for example, for a doctor who tested negative 80 hours before the flight, but maintains that he has remained in a single isolated room since then, and has closely monitored his temperature, oxygen saturation, and all other indicators to be sure he is still negative. By the way, why not 80, or 70, or 60 hours? – 72 is a somewhat arbitrary line.
- In some countries/situations, a person cannot enter is he has a forehead temperature over X degrees. To make such a mass screening test (e.g., at airports) workable, it cannot make exceptions for the rare person who runs (and/or even claims to have medical documentation to prove) a higher-than-normal temperature.
- Initially in many states, only persons 65 and over could obtain a vaccination. Thus even those just under 65 who might be at elevated risk because of other medical problems could not get it. That’s because although it is easy and feasible to check a person’s age, it is not easy or feasible to check and verify any medical conditions, and to evaluate their severity (e.g., moderately high BP by an otherwise healthy 60 year old). That’s what the professor seems to be asking for,
Federal Law Doesn’t Prohibit COVID-19 Vaccine Mandate
FIVE – The law appears to be to the contrary. The Justice Department has concluded that federal law doesn’t prohibit COVID-19 vaccine mandate, a federal judge sided with a Houston hospital when employees sued to block its Covid-19 vaccine requirement, another federal court also rejected a request by students that it block Indiana University’s vaccine requirement, and this decision was just upheld by a federal appeals court.
SIX – It appears that the professor can, if he wishes, obtain an exemption. For example, he can simply work – and teach – from home. This is something which most professors have been forced to do anyway for most of the last year, so it is clearly not an unprecedented or unreasonable requirement. Alternatively, he can come to work – and teach – at the University, provided he wears a mask and undergoes periodic testing. BUT . . .
SEVEN – Since this appears to be exactly the same requirement now imposed on all federal employees and onsite contractors, as well as by many private businesses and other universities, it would appear that a decision in favor of the professor would threaten all of these, and be inconsistent with the several decisions cited above.
EIGHT- Years ago Prof. Banzhaf obtained a federal ruling that companies could require all their workers to be nonsmokers (i.e., to quit if they smoked). Many companies have now done so. The legality of requiring smoking workers to quit or be fired has been repeatedly upheld even though quitting is much more difficult than simply getting vaccinated.
Court also upheld the ban on smoking on even very long airplane flights, even though traveling is a constitutionally protected and important right, and going without smoking for more than a few hours is much more difficult that getting vaccinated, especially for smokers who are addicted to nicotine. They have also upheld the requirement in prisons, and even in nursing homes which residents, for medical and other reasons, were not free to leave.
TEN – It would appear that the burden on the professor to get vaccinated is very small, since getting a vaccination months after having COVID does not appear to create any serious risks (beyond the mild reactions most of use felt) of the injection.