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Editorial: To mandate or not to mandate? That is the question

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When Hamlet uttered the first lines of the famous Shakespeare soliloquy more than 500 years ago, the young prince of Denmark was debating between life and death.

Jacob Owens
Editor
Delaware Business Times

In 2021, the choices in the face of a global viral pandemic worsening yet again seem to have the same sense of scale.

It was just three months ago when the leadership of the U.S. Centers for Disease Control and Prevention advised that the vaccinated could “start doing the things that you had stopped doing because of the pandemic.” For the first time in more than a year, there was a sense of optimism that our long national nightmare might finally be ending.

Then came the variants though. With delta spreading quickly, especially in states where vaccination rates are low, it feels as if the tides are beginning to change again.

On July 27, the CDC advises that everyone – vaccinated or not – should begin wearing masks again in indoor public settings in areas of “high COVID-19 transmission,” a designation that covers large swaths of the country, and currently all of Delaware.

Studies have shown the effectiveness of the simple cotton mask to stem the transmission of a virus, especially one like the delta variant of COVID-19 that is especially contagious. The reality is that such guidance is simply a band-aid though.

With Gov. John Carney’s state of emergency expiring in July, his ability to enforce mask mandates is pretty much mute. His power as the chief executive of state services allows him to enact mask measures in state facilities, which he did Aug. 10, but he cannot enforce them in private businesses like he did over the past year.

That lack of enforcement means we must make up our mask-wearing adherence with a carrot, and yet there feels to be too few offerings to convince a divided public.

ChristianaCare Medical Assistant David Overton is vaccinated by Assistant Nurse Manager Kristin Macey at Wilmington Hospital in December 2020. The health system is one of three to institute a vaccine mandate in Delaware. | PHOTO COURTESY OF CHRISTIANACARE

Masks have become symbolic and therefore controversial over the past year. Frankly, at least from the people I’ve seen, the people who most desperately need to wear them are the ones least likely to.

All of this means that we need to redouble our efforts to get people vaccinated. It’s been proven to be our most effective tool against the virus after administering more than 160 million people nationwide.

Yet we still have a large number of unvaccinated people due to a mix of indifference, misinformation, legitimate concerns, and partisan politics. Only about 60% of Americans over the age of 12 – the current youngest approved COVID-19 vaccination age – have received a full set of vaccinations, with another 10% or so having received one dose, according to the CDC.

According to monthly surveys by KFF, a national nonprofit working on health policy, the public attitudes toward vaccination have not changed by much in the past six months. As of August, about 14% of Americans said they do not plan to get the vaccine, while 10% were taking a “wait and see” approach and 3% said that they would only get it if required.

It’s that last part that is putting more of corporate America in the crosshairs of the growing cultural debate: Should we require people to get vaccinated to help end this pandemic?

In May, the U.S. Equal Employment Opportunity Commission published guidance that there is no federal regulation stopping employers from requiring a COVID-19 vaccination as a condition of entering a workplace and that incentives to get vaccinated are legal as long as they are not coercive.

It’s a common misconception that an employee’s medical history is protected from their employer by the Health Insurance Portability and Accountability Act of 1996, or HIPPA. That federal law pertains only to health care providers and health insurers in their secure handling of medical records but does not create a private cover of one’s medical history.

The federal courts have also supported an employer’s right to mandate vaccinations as a term of employment, including as recently as June, when the U.S. District Court for the Southern District of Texas ruled in favor of Houston Methodist Hospital and its vaccination mandate. A group of 117 employees had filed suit against the hospital claiming, among other things, that their employer was forcing them to be “human guinea pigs.”

A vaccinate-or-terminate mandate is one fraught with issues for employers, ranging from public relations to staffing, productivity to enforcement, but it frankly may be the quickest way for us to get out of this never-ending COVID cycle.

We’re told that magical herd immunity lies around 70% to 75%, which means we need to get as many of those holding out off the fence. If 13% of adults could be swayed by forcing them to get vaccinated as a condition of employment, we’d be pretty close to our goal.

Employers can be a part of that drive to the goal, and they largely should not hesitate as they would any other issue. Judge Lynn Hughes, appointed by President Ronald Reagan, perhaps summed it best in his Methodist ruling.

“[The plaintiff] says that she is being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. [She] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.

“If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”

By Jacob Owens
Editor

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