Everybody’s Doing It But The Federal Government.

 


Photo by David Everett Strickler | Unsplash

Photo by David Everett Strickler | Unsplash

My law firm is doing it. CNN  is doing it. Indiana University and my sons’ schools are doing it. So is the largest hospital system in Houston, The Foo Fighters, and even Dead and Company.  

  

So why not the nation’s largest employer – the federal government? Why amidst this vaccine hesitancy is president Biden not ordering all 9 million federal employees – including the military – to get vaccinated?   

  

We’re in the midst of the third wave of COVID-19. The Delta variant is deadly for those who refuse to be vaccinated, and there are few left who can be persuaded with science and logic. Not even the fact that virtually everyone hospitalized across America for COVID-related illness has one other thing in common – they are un-vaccinated. Said differently, virtually no one who has been fully vaccinated for COVID is in the hospital with a COVID illness.   

    

So why are succumbing to the intransigence of the unwilling instead seeking to punish the responsible who have done their part by getting vaccinated?    

Two more real-world examples of the unrepentant unvaccinated were in the news this week. Here in Philadelphia, The Inquirer reported that as many as half of the players on the Phillies remain unvaccinated. In early June, the Phillies were enticing fans to come to the ballpark and accept a free vaccine by giving away. Free tickets, refreshments, and a bobblehead of their star pitcher Aaron Nola.  

Yet The Philadelphia Inquirer reported that Nola himself is one of the players who has refused the vaccine, calling it a, quote, “personal choice.”  Columnist Marcus Hays noted:  

“It is a personal choice that cost his employer two of his 34 starts this season, for which he is being paid 11.7 million dollars. Further, as the Phillies continue their unlikely surge into the national league east title race, Nola and his fellow anti-vaxxers live each day with the possibility that they might not be available for upcoming games — usually at least five but possibly as many as nine or 10, depending on the schedule.” 

Meanwhile, rock legend Eric Clapton threatened he may not perform at venues requiring proof of vaccination. In a statement posted on an anti-vaxxers social media account, Clapton wrote:

“I wish to say that I will not perform on any stage where there is a discriminated audience present. Unless there is provision made for all people to attend, I reserve the right to cancel the show.” 

I agree with my friend and colleague, the lawyer and law professor Shanin Specter, who wrote a piece for Smerconish.com called “It’s Time to Change the Delta on the Delta.’ In it he writes: 

“The day for effective public service announcements by basketball coaches and 18-year-old pop stars is over – it’s obvious that they hold no sway over those who’ve passed on vaccination in the many months it’s been generally available. Let’s not waste any more money or energy on that.”  

Specter goes on to argue that if the administration made it mandatory for the 9.4 million employees, it would spur more governors and mayors to do the same for their 7.1 million workers – which in turn would normalize it and embolden more private employers to do likewise. As The New York Times reported back on July 1st:

“President Biden could legally require members of the military to get vaccinated, but so far he has declined to exercise that power even as the highly contagious delta variant has become an increasing threat to unvaccinated Americans… The military has worked hard to combat vaccine misinformation in its ranks since the shots first became available. More than 80 percent of active-duty service members are under 35, a group that often views itself as impervious to coronavirus infections. Many worry that the vaccines are unsafe, were developed too quickly, or will affect fertility.” 

The Times reported the percentage of the different branches who had gotten at least one shot were as follows:  

  • Navy: 77 percent

  • Army: 70 percent

  • Air Force: 61 percent

  • Marine Corps: 58 percent

That’s better than the national average, but not what it should be. Although the FDA approval was cited by military leaders as to why they couldn’t require coronavirus vaccinations — as they do for other inoculations, the times reported this:  

“Under federal statute, however, the option to refuse “may be waived only by the president” if it is determined that refusing “is not in the interests of national security.”  

In May, the U.S. Equal employment opportunity commission itself said that an employer can lawfully require employees to obtain a vaccination as a condition of returning to the workplace so long as the employer reasonably accommodates employees who are unable or unwilling to get vaccinated because of a disability or sincerely-held religious belief. 

So President Biden has this power. Why isn’t he using it? Instead, CNN reported this week that as the delta variant spreads the White House and CDC are considering revising mask recommendations for vaccinated Americans.  

That’s backward. We aren’t mandating that the un-vaccinated get the jab…. Instead, the idea is to mandate urge more masks for those who are vaccinated? That’s backward.  

 

By that logic, we don’t know who is vaccinated, so everyone should wear a mask? Instead of imposing further upon the vaccinated, let’s up the pressure on the un-vaccinated. 

 

On Thursday the NFL announced that if there’s a COVID-19 outbreak among unvaccinated players, a game cannot be rescheduled and that team will be forced to forfeit, resulting “in a loss for playoff seeding.” 

The NFL is right. Maybe an MLB policy like that would get more of the Phillies vaccinated. And a similar example should be set by President Biden in requiring all federal employees to get the shot. And the same should apply to governors and mayors.  

 

In San Francisco, Mayor London Breed did just that for all 35,000 city employees – and the policy has not been met with resistance. City employees have July 29 to report their status and no later than 10 weeks after the FDA gives final approval to at least one COVID-19 vaccine to get vaccinated. 

Waiting until final approval isn’t legally necessary, but it’s a step in the right direction. On Thursday, Alabama’s Republican Governor Kay Ivey addressed the fact that her state had seen nearly 10 thousand new cases in the past two weeks – and that only 33.9 percent of its residents are fully vaccinated – less than any other state.  

“Folks are supposed to have common sense. But it’s time to start blaming the unvaccinated folks, not the vaccinated folks. It’s the unvaccinated folks that are letting us down,” Ivey said. 

She’s right. Now she should require her state’s employees to get the jab.

Here’s the bottom line: This is really about which people in this country are going to control virus-related behavior: the unvaccinated or the vaccinated? There will be some level of peaceable civil disobedience either way, but allowing the unvaccinated to control virus policy is unjust and unhealthy. It’s time for the government to lead!


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