Many red states in the last few months have banned public entities from mandating the COVID-19 vaccine. This is a step in the right direction but does not go nearly far enough. Private employers and state and local governments are still free to impose COVID-19 vaccination requirements on employees.
In late November, Willis Towers Watson surveyed 543 large companies whose workforces comprise 5.2 million employees. They found that 57 percent of employers plan to mandate or already have mandated the COVID-19 vaccine. Many of those employers made their final decision conditional on the OSHA Emergency Temporary Standard (ETS) taking effect. With the Supreme Court striking down the OSHA mandate, the percentage of employers with plans to mandate the vaccine drops to 25 percent.
This is good news, but before we schedule the victory parade, let’s remember that 25 percent of the U.S. private sector workforce is almost 32 million people. While a majority of this population is already vaccinated, there can be no doubt that millions are not.
The Kaiser Family Foundation released a poll in late October that found that 5 percent of unvaccinated workers had already quit their jobs due to a vaccine mandate, and that 72 percent would quit if their employer instituted one. Once again, this very likely works out to millions of people.
When you get beyond the percentages and consider the enormous raw numbers they represent, it raises a simple question: are we willing, as a nation, to risk putting millions of Americans out of work at one stroke?
Some states have already answered that question with a resounding “no.” Tennessee and Montana have passed legislation to ban all employer mandates. Other states, including Florida, Texas, Iowa, Utah, Alabama, Kansas, North Dakota, and West Virginia, either through executive order or legislation, require employers to accept employee requests for exemptions—normally medical or religious—from a COVID-19 vaccine mandate.
Ideally, one should be able to refuse a vaccine without offering a reason, but unfortunately the right to privacy appears overlooked. Beggars cannot be choosers, however, and both approaches accomplish the same purpose—allowing unvaccinated workers to stay on the job. Still, that is a paltry number of states, considering there are 28 Republican governors and 23 states with both a Republican governor and Republican-controlled legislatures.
Some states, such as Arizona, are trying to have it both ways. Republican Governor Doug Ducey signed a bill requiring employers provide a “reasonable accommodation” for employees who seek a religious exemption from the vaccine, as long as it does not cause the business “undue hardship.” This language exactly mirrors Title VII of the Civil Rights Act, which means Ducey’s bill does not add any new protection for workers that do not already exist under federal law. This is inadequate and equivocating—an effort to get credit for doing nothing. Utah’s bill is similarly weak because it allows employers to fire employees with exemptions if they are unable to reassign them.
On a side note, Title VII protections for people of faith are probably what is keeping companies from letting more people go. Anyone fired for not taking the vaccine, who has expressly cited his religion as the reason for not doing so, can file a complaint with the Equal Employment Opportunity Commission (EEOC) citing religious discrimination.
With so many Republican states failing to rise to the occasion, Congress needs to step into the void. Republican lawmakers should introduce a bill that mirrors those of Tennessee and Montana, or at least one requiring employers to recognize an exemption for any reason. Under the latter option, Florida, Iowa, and Kansas’ bills should be the model because they do not allow employers to vet the legitimacy of exemptions requested. All must be honored.
U.S. Representative Marjorie Taylor Greene’s H.R. 2317, the “We Will Not Comply Act,” introduced in August, also provides a good template. The Georgia Republican’s bill would extend protections from Title II of the Civil Rights Act, which forbids discrimination in public places based on race, color, religion, and national origin, to those unvaccinated from COVID-19.
If passed and signed into law, the bill would render null and void any city and state-wide mandates that require proof of vaccination in order to enter bars, restaurants, and other public venues. However, Greene’s bill would not affect employer mandates from employers, cities, or states. In order to accomplish that, Title VII of the Civil Rights Act would have to be amended, as that is the part of the statute that deals with employment law. Replace Title II with Title VII in H.R. 2317, and employer and city-wide mandates are no more.
Better still, legislation might ban businesses from inquiring into employees’ vaccine status at all. That way, internal promotions, in addition to new hires, would also be unaffected by vaccine status. If the “scarlet letter” of vaccine status is invisible too, employers could not discriminate on that basis. Opponents will surely argue employers will need to know workers’ vaccination status for safety purposes, but now that it is clear the vaccinated can spread the virus as easily as the unvaccinated can, that argument falls flat.
This approach also has the additional advantage of not putting employers in the position—even nominally—of vetting religious exemption requests, which gives the profoundly un-American impression of religious subordination to secular authority. And for those who say a bill like this will not pass for another three years, its introduction and advocacy would send a clear signal that Republicans will not sacrifice a single job to the Left’s fearmongering and misinformation. The same goes for those with doubts as to constitutionality. Force the Supreme Court’s hand. Even if overturned, the publicity will shift public opinion favorably.
The Supreme Court’s reversal of the OSHA order is only one small victory. The current administration may try rulemaking in another federal agency to force the COVID vaccine. And regardless, nothing prevents cities like New York and private employers from imposing their own mandates.
Livelihoods are at stake. New York City in December of 2021 became the first city in the United States to implement a city-wide worker mandate, covering anyone who comes into contact with a single person as part of their job. Will other cities or even states follow suit? As the Watson survey indicates, it may not matter—numerous employers are more than happy to impose mandates on their own workforce without any governmental pressure at all.
As the science becomes clearer and clearer every day that both the vaccinated and the unvaccinated are able to spread the virus, discriminatory measures against the unvaccinated are becoming harder and harder to defend.
The unvaccinated only make up 13 percent of the adult population (an enormous 26 percent if you include those with only one shot!). And whatever their vaccination status, the overwhelming majority of Republican voters—and certainly the most passionate—have no use for vaccine mandates on employees, whatever their source. Let’s not alienate them.