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Employer Vax Mandates Are On The Right Side Of Science, The Law

Andrew Brown
Andrew Brown

100,000 newly confirmed Covid-19 cases every day – a milestone we last exceeded over the winter and had optimistically thought was behind us.

Our optimism was clearly premature. We did not anticipate the highly infectious Delta variant now spreading with alarming speed across the nation. We also could not have predicated predicted the degree to which Americans would refuse to get vaccinated against this deadly virus. Their resistance, fueled by an epidemic of politically motivated misinformation, is facilitating mutations, and inhibiting our ability to put an end to this pandemic once and for all.

Now comes news of yet another variant, identified in Africa, Asia, and the South Pacific, which could be even more transmissible and dangerous than those we have already seen. Meanwhile, here in the U.S., hospitals in hard-hit states are overrun, travel bans are again in effect, and infections among children too young to be safely vaccinated are on the rise – just as the school year gets underway.

Enough is enough.

We know that vaccines are the strongest and most effective tool available to curtail Covid-19. This is not to say that they are a silver bullet. Breakthrough infections are possible, but the data has definitively shown that those who are fully vaccinated are far less likely to suffer serious illness or die should they contract the virus.

A growing number of employers in both the public and private sectors have ramped up efforts to get workers vaccinated, with some going so far as to mandate inoculations and fine those who refuse to comply. Governor Kathy Hochul’s administration, for example, recently tightened the vaccine mandate for healthcare workers by eliminating religious exemptions and is now looking to extend that requirement further to include all state-regulated facilities and congregant settings.

It is time for all employers to follow that lead. And they can be secure in knowing that both science and the law are solidly behind them.

This country has a long history of mandating vaccinations to safeguard public health. The first such mandate, targeting smallpox, dates back to 1809. In 1905, the U.S. Supreme Court upheld a Cambridge, Massachusetts smallpox mandate, effectively ruling that an individual does not have the inalienable right to put others at risk. Almost two decades later, the high court again came down on the side of vaccine mandates, this time upholding requirements that school children be inoculated against certain infectious diseases.

And just last month, the Supreme Court declined to take up a case challenging Indiana University’s vaccine mandate for students and faculty, effectively rejecting the litigants’ argument that the requirement violated their constitutional right to bodily integrity.

The reality is that government’s most sacred duty is to protect its constituents, and that extends to taking action to safeguard the many at the possible expense of the few who feel their rights are infringed. The deep divisions in this country have been exacerbated by the coronavirus pandemic and emboldened a vociferous minority to espouse extreme, and frankly dangerous, views regarding individual rights. We cannot allow the future of this country to be held hostage to their agenda.

Almost a year ago, the New York State Bar Association, of which I am president, recommended that the state consider mandating a Covid-19 vaccine once a scientific consensus emerged that it was safe, effective, and necessary to do so, and also after efforts to encourage voluntary vaccination were exhausted.

In light of developments since that call, which was approved by the Association’s governing body, the House of Delegates, I convened an emergency task force in July to revisit the question of a vaccine mandate. The case for a mandate has only strengthened over the past year, culminating in the Food and Drug Administration’s recent formal approval of the Pfizer vaccine for the prevention of Covid-19 in individuals aged 16 and up.

The Task Force concluded that, with a very limited number of exceptions, all New York employers should require vaccines to safeguard the largest number of individuals possible against this deadly virus.

The Bar Association does not take these recommendations lightly and has been the target of considerable backlash and opposition from anti-vaccine advocates as a result of its position. But I remain firmly convinced that we are on the right side of science, the law, and history. If we fail as a society to step up and lead in this moment, we will find ourselves forever on the losing end of our Covid battle.

Andrew Brown is president of the New York State Bar Association.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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