Does the US government have to power to mandate vaccines at private employers? Attorneys weigh in

Many people are questioning the legality of the government or employers mandating vaccines.

The federal mandate is expected to affect about 80 million people or about two-thirds of the work force.

“So far, it appears that the president is basing his authority to impose the mandate on the private sector on a set of statutes that empowers a federal agency — OSHA — to prescribe regulations to protect workers from ‘personal injuries and illnesses arising out of work situations,’” said attorney Rex Grady, a constitutional law professor at Empire College School of Law in Santa Rosa. “It seems doubtful that a contagious disease is the kind of danger OSHA was empowered to address.”

He believes employees could assert medical privacy, the First Amendment and disparity when it comes to people working at smaller companies not having to be vaccinated or tested regularly as reasons to fight the mandate.

Grady understands that the greater good could be an argument and one that has gone to the U.S. Supreme Court. In 1905 in Jacobson v. Massachusetts the court ruled in favor of the state. Henning Jacobson had refused to get the smallpox vaccine, and was charged by the state. The court said his constitutional rights were not violated.

Grady, though, believes it is time to revisit this decision.

“The fatality rate of smallpox in 1905 was of a magnitude that dwarfed the danger posed by COVID, and struck all segments of the population without discrimination,” Grady said. “As noted, it is not enough for the government to establish the existence of a compelling purpose; the government must also demonstrate both that its compelling purpose is actually furthered by the restriction on liberty, and that liberty is only restricted to the extent necessary to achieve the government’s ends.”

Another related Supreme Court case is from 1922. In Zucht v. King the jurists said the Texas school district had legal grounds to exclude a student who refused vaccinations.

“I have heard from a number of plaintiffs’ attorneys that they will not accept a case for an employee who wants to sue because an employer is mandating vaccinations,” said Valorie Bader, attorney with Welty, Weaver & Currie law firm in Santa Rosa and chairperson of the Labor Employment Committee for the Sonoma County Bar Association.

The North Bay Labor Council, AFL-CIO, is behind vaccine mandates but wants to ensure labor contracts are adhered to.

“One area where we have some consternation is those unions that have collective bargaining units should be able to sit and negotiate the impacts of vaccines or weekly testing,” Executive Director Jack Buckhorn told the Business Journal.

He said this is particularly important with the Sept. 30 expiration of state regulations pertaining to employers having to pay for related COVID-19 expenses such as sick leave for employees.

“We’ve been in favor of vaccinations since the beginning. We think it’s critically important for the safety of the public, our members and our economy,” Buckhorn said.

NBLC represents more than 70,000 people who are in more than 70 union affiliates in Sonoma, Lake, Mendocino, and Marin counties. The largest union is SEIU, with California Nurses Association, IBEW and several teachers’ unions also part of the council.

Even though California is the only state in the CDC’s “substantial” COVID-19 transmission category, the state must comply with the federal vaccine mandate when the rules come out. The Centers for Disease Control and Prevention’s “substantial” level means daily cases per 100,000 residents is between 50 and 99. CDC has two levels below “substantial” and one higher. All other states are in the “high” category.

The Occupational Safety and Health Administration (OSHA) is expected to take two to four weeks to release details pertaining to the president’s mandate, and after that Cal-OSHA must weigh in.

Cal-OSHA regulations usually require public input. However, emergency regulations, which these are expected to be, can be implemented on a temporary basis. Emergency Temporary Standards are already in place by Cal-OSHA related to the pandemic.