Are We Going to Have a Vax Mandate Uprising?

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September 14, 2021 11:59 a.m.

I went a few rounds with TPM Reader EG over the last couple days over whether President Biden’s vaccine and test mandate will be the precipitating event leading to the breakdown of civil order in the US which now seems perpetually just around the bend. That’s not at all what I see coming. I’m all for the mandate. If anything I think Biden should be more aggressive. But I was curious that EG did see it unfolding this way.

In his view, the reports of an upstate New York hospital having to shutter its maternity ward because a group of health care workers had quit their jobs rather than be vaccinated is the leading edge of a coming wave. He sees hospitals having to reduce capacity just as COVID is filling ICUs in the fall. Then there are police, one of the least vaccinated of professions. He sees waves of police quitting their jobs, putting more pressure on efforts to tamp down on COVID-era crime surges and creating a pool of out of work LEOs ready to provide the muscle for future insurrections.

EG’s view seemed shaped at least in part by the experience of wife who works at a hospital and sees a similar level of vaccine resistance as we saw in that hospital in Upstate New York. But still this seemed wild and overheated to me. My own sense is that most vaccine resistance is performative and will fold in the face of meaningful consequences for irresponsible behavior and putting other people’s health at risk.

It’s really not a vaccine mandate. It’s more a mandate to either get vaccinated or assume the responsibility of your actions – in the form of regular testing.

After Delta Airlines announced a $200 a month surcharge on health care premiums for non-vaccinated employees roughly 4,000 employees got vaccinated and virtually none have resigned. And that’s just after three weeks. Health care premiums don’t seem like a good way to approach getting people vaccinated. But it makes the point.

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Politico reported yesterday that the packaged goods trade association is pressing the White House to speed up releasing details about it’s vaccinate or test mandate. They seem all for it. They just want details to get down to implementation. My own sense is that businesses – particularly large businesses – have been eager for the White House to pull this trigger since it takes the matter out of their hands, ensures that everyone will have to move forward at once.

New York City has put in place a similar vaccinate or test mandate which applies to the NYPD, which like most police departments has a low vaccination rate. The initial order said that cops would have to do the testing on their own time and own time. The union pushed back and now the city will pick up the tab. So far, no uprising.

Finally, I was interested to read these two write ups from Jonathan Adler, a right-leaning but non-crazy legal professor looking at potential legal challenges to Biden’s order. Given the state of the courts today we can’t rule out anything. But these are interesting looks at the specifics and relevant law. The gist is that the mandates for private sector companies and health care workers seem to be on pretty strong footing. The one place where OSHA lawyers will likely need to tighten the definitions is on employees who work from home. The relevant law says rules need to be narrowly tailored and justified by specific and “grave” harms. That doesn’t sound like a heavy lift for employers who in any way congregate employees together. But for work from home employees the rationale seems much more tenuous. So we may see regs which look more specifically to employers who are congregated together rather than a more arbitrary line at employers who have more than 100 employees.

In any case, my main takeaway is that the regs seem on pretty strong ground. The greater problem we face isn’t overreaching government so much as our penchant for enabling and coddling people who make anti-social decisions. It doesn’t lead just to bad policy results. It breeds a climate of contempt for government itself since it seems so weak, unable to use power to push society in directions that are better for all.

In general, I expect the great proportion of the vaccine resistant to fold. And if they don’t, remember, it’s actually not a vaccine requirement. They can just be tested once a week.

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