Guest Post by Rep. Brian Harrison & James R. Lawrence, III
On May 5, citing the risk “of rare and potentially life-threatening blood clots,” FDA announced it was trimming back authorization of Johnson & Johnson’s COVID-19 vaccine. For millions of Americans coerced by their employers into taking that particular shot against their will, the agency’s action is too little, too late.
And yet employer vaccine mandates still exist, as large companies shirk the risk related to these products onto working-class people, who have no recourse. If you think the party that gave us the New Deal and Great Society would take issue with this, then think again. Democrats have shucked workers aside, falsely grasping the mantle of liberty. Joe Biden, it turns out, is no Ludwig von Mises.
It was not always this way. In a Senate Health, Education, Labor, and Pensions Committee hearing, a Senator shared serious concerns regarding workplace wellness programs and “workers being pressured to share personal health information, or losing coverage as a result of companies taking the wrong approach.” The Senator said these programs “should grow as a tool to help employees and not as a tool for discrimination.” Seems reasonable to assume this Senator is also against vaccine mandates, right? Wrong.
That was Senator Patty Murray in 2015. Today, Senator Murray and many of her fellow Democrats support employment discrimination—at least against unvaccinated Americans. In a speech on the Senate floor in December 2020, Senator Murray praised airlines and retailers for imposing vaccination-or-test mandates on their employees along with all that entails, not the least of which is employers prying into their workers’ vaccine status.
Democrats still portray themselves as the party of workers’ rights and anti-discrimination law, but recently the party has gone to great lengths to defend vaccine mandates, arguably the boldest assertion of corporate power over workers in decades. Meanwhile, recently, President Trump called for legislation banning vaccine mandates.
This newfound embrace of the right to discriminate, at least against the unvaccinated, is not limited to Democrats. One libertarian critic rejects Governor Ron DeSantis’ efforts to ban private vaccine mandates in Florida. To this critic, “it’s the Republican officials racing to prohibit private vaccine mandates who are violating clear-cut conservative principles,” because “[i]t is wrong for the government to tell individuals, private associations, and businesses what to do.” The “principled libertarian position” is “that such restrictions should neither be mandated nor prohibited.”
But is it? Do vaccine mandates necessarily flow from a free society or is there more to the story?
The private vaccine mandates did not come to us out of a Lockean state of nature—they arose out of the very private-public swamp President Trump ran against in 2016. At the federal level, the OSHA, CMS, and federal contractor mandates applied pressure to the private sector. As law professor Richard Epstein observed, “there is an ever tighter interdependence between public and private institutions so that it is no longer as easy for the latter to claim independence from constitutional oversight when the federal government has either by promises or threats ‘insinuated’ itself into private actions,” which it has in this case. Add to that the oversight of state and local governments in Blue States which can set policy for employers across the entire country. And of course, even though the OSHA mandate fell at the Supreme Court, federal vaccine mandates still exist for millions of federal employees and healthcare workers.
Aside from direct coercion, there is another factor at play for private mandates, and it has little to do with Adam Smith’s Invisible Hand. Products liability law, which has typically been the domain of the States, generally allows injured consumers to recover damages against product manufacturers. Frivolous lawsuits are a huge problem, they raise the cost of doing business, increase prices for everyone, and must be reined in. But the manufacturers of the COVID-19 vaccines enjoy immunity from such suits under the PREP Act as taxpayers, not the companies raking in billions, pick up the tab for vaccine-related injuries. Employers arguably fall within the scope of not only PREP Act immunity, but also state law caps on liability provided under workers’ compensation laws. While ending frivolous lawsuits is an essential goal, given this landscape, employers have every incentive to mandate vaccines because they can effectively shift all the risk to workers. There is no downside.
Without this government-created insulation from liability, would private employers still demand their workers get vaccinated? Perhaps in some settings. But we would not see mandates across the entire economy, given the risk businesses would otherwise face without liability protections. Before mandating any shots, employers would have to carefully weigh the risks of liability against the benefits of a vaccinated workforce while considering natural immunity to COVID-19 and waning vaccine efficacy against the Omicron variant. Companies would also want to be confident their insurer would cover any vaccine-related injuries. That is a gauntlet few businesses would choose to run.
Businesses have not historically dictated medical procedures for their employees. That’s not an accident. Imagine the outrage if a business required abortions for all pregnant employees? What about forced sterilization? Both would reduce time out of the office and save money, but our society rightfully would not tolerate it.
Even right to work states like Texas set boundaries around the employment relationship, forbidding employers for firing workers on the basis of race, religion, age or disability, retaliation, or sex (including pregnancy) for example. Last year, an ESPN employee trying to get pregnant refused her employer’s mandate and quit. The irony is that had she become pregnant, her employer would be prohibited by law from firing her. Her body, ESPN’s choice.
These mandates must fall. One such effort is the proposed Texas COVID Vaccine Freedom Act. The proposal is based on the common law rule that informed consent does not exist when a patient is coerced or compelled to receive a medical procedure. The Act would make it illegal to administer a COVID-19 vaccine without receiving a patient’s informed consent, something workers coerced into getting a shot cannot provide.
The private mandates are largely the result of government meddling, not liberty. And now it is time for the States to mitigate the unintended consequences of liability protections extended by Congress.
Brian Harrison, who represents District 10 in the Texas House of Representatives, previously served as Chief of Staff at the U.S. Department of Health and Human Services and helped launch Operation Warp Speed. Along with Representative Harrison, James R. Lawrence, III served as a Deputy General Counsel at HHS, and was outgoing Chief Counsel of the FDA under President Donald J. Trump.
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