Jenin Younes recognizes that Americans have often grappled with the question of where the line needs to be drawn, when striking the balance between public health and personal freedoms.
But this time, as American business and society rush toward mandating COVID-19 vaccines, she said, the implications are rather different, and more alarming.
“Now, you have people who are not just being required to pay a fine, and can then move on with their lives,” said Younes, an attorney with the New Civil Liberties Alliance. “Now, you have people who are being threatened with being shut out of society, entirely, unless they agree to take this vaccine.”
Jenin Younes
| New Civil Liberties Alliance
So, Younes and other legal observers said, the implications of the ever-mounting push for more COVID vaccine mandates will undoubtedly generate a matching surge of lawsuits, as the courts are called upon to play a leading role in unraveling potentially thorny legal questions.
For generations, Americans have grown accustomed to the idea of vaccine mandates.
Since the late 1800s, as vaccinations have time and again proven their efficacy against infectious diseases of many kinds, governments and, to some degree, private employers have routinely moved to mandate people take the jabs.
And, as often as they have been mandated, resistance to the requirements have arisen in various circles, fueled by concerns about the safety of the inoculations, or out of belief that taking the vaccines would cause adherents to violate their religious convictions or tenets of their faith, among other concerns.
Famously, in Jacobson v Massachusetts, the U.S. Supreme Court sided in 1905 with public health authorities, in agreeing the state could force a man, who claimed to have suffered a terrible reaction to an earlier smallpox vaccination, and was concerned with how the inoculation might then affect his health, to pay a $5 fine – or about $135 in 2021 dollars – should he refuse to take a smallpox vaccine, in defiance of law.
The decades that have followed have produced a kind of détente, in which the majority of people are required to receive certain vaccines, typically as children, as a condition of attending school, while a minority are exempted from the requirement, for religious, medical or even personal philosophical reasons.
However, following the invention of new vaccines to combat COVID-19, the space for such a balance is quickly evaporating, amid a pro-vaccine campaign that has quickly turned from enticement to compulsion.
'SHUT OUT OF SOCIETY'
Initially, most vaccine drives were centered on “carrots,” dangled to entice those on the fence to take the needle. Such carrots included focusing on the promise of better health outcomes, or guarantees of a “return to normal,” or even the possibility of winning millions of dollars in state-sponsored vaccine lotteries. Private businesses also offered free merchandise, such as restaurant food, coupons or gift cards.
As the results of such positive campaigns appeared to have plateaued this summer, government officials and America's big businesses, alike, have turned decidedly toward “the stick.”
While governments are not yet forcing anyone, by law, to take the COVID shot, many people hesitant about the vaccine, far from being left alone to decide for themselves, are being faced with what may be, for them, a difficult choice:
Take the vaccine, or face a future in which they may have few options to travel, indulge in cultural events, keep their jobs, advance their careers or potentially even preserve their parental rights.
In August, for instance, an alliance of theaters in Chicago announced they would require everyone attending their performances this fall and winter to produce either proof of full COVID vaccination or a negative COVID test. On Sept. 2, the United Center, home of the Chicago Blackhawks and Chicago Bulls, announced similar requirements for anyone attending an event in that stadium.
In other cities, such as New York and San Francisco, local governments have implemented vaccine mandates for a host of indoor venues, including restaurants, taverns, theaters and more.
California is considering legislation to implement such mandates statewide.
Students attending colleges and universities in Illinois and elsewhere are required to show proof of vaccination, or risk expulsion.
And in Chicago, a judge recently temporarily stripped parental rights from an unvaccinated mother, who was enmeshed in a child custody dispute. The decision became public, and provoke a strong backlash. The judge rescinded that order, and recused himself from the case.
Most people, however, will encounter the potential sting of vaccine mandates in their workplaces.
The push for vaccine mandates has gained steam among employers, of all kinds, threatening workers with a gauntlet of mask requirements and strict testing regimes, or even termination, if they refuse.
In Illinois, Pritzker has required a host of state workers to receive the vaccine. Chicago Mayor Lori Lightfoot has done the same for many city employees.
To date, the number of private employers requiring workers receive the COVID vaccine has remained relatively small, to date, centered mainly around health care institutions, professional services companies, like large law firms, and restaurants and others in the hospitality sector.
But it is rapidly growing. Indeed, a new survey from Willis Towers Watson indicates that, by the end of 2021, more than half of all employers are expected to have put such COVID vaccine requirements in place.
The report indicated 29% of employers intend to make vaccination “a requirement to gain access to the workplace,” and 21% intend to make vaccination “a condition of employment for all employees.” Few companies, fewer than 20%, however, offer any kind of incentive to get vaccinated, other than the ability to remain employed.
And a new report from the Society of Human Resource Managers indicates a growing number of employers are making vaccination mandatory for all job applicants, as well.
Faced with such a push, Younes said her phone and inboxes have been filling with pleas from “thousands” of vaccine-hesitant people, across the U.S., seeking help in pushing back, and carving out a space for their conscience.
“People don’t like to feel coerced,” said Younes.
BIG PUSH, BIG PUSHBACK?
But beyond the potentially bad taste left by threats, Younes said, employers also face the risk of lawsuits.
She said that is particularly the case if employer vaccine mandates don’t line up with America’s legal traditions, or, as she argues, with long-recognized scientific principles.
Recently, Younes represented Todd Zywicki, a law professor at George Mason University in Virginia. Zywicki had filed suit against the public university that employed him, when it issued a vaccine requirement for all employees.
In that suit, Zywicki asserted he should be exempt from the vaccine mandate, because he didn’t need it. After recovering a COVID infection at the beginning of the pandemic, Zywicki produced medical reports indicating his antibody levels exceeded those of people who had been received the full dose of COVID vaccine.
Ultimately, the case quickly ended when George Mason granted him a medical exemption from the vaccine requirement.
“Our position is the requirement to vaccinate everyone, no matter their naturally acquired immunity, was against not only the science, but also violated the law,” said Younes.
Historically, she noted, most vaccine mandates included space for people to demonstrate they were already immune, and did not need to take the jab.
That, she said, has not been the case with COVID vaccines, to this point, however, putting the onus on those who wish to fight to head to court to secure such rights.
The NCLA is just one of several legal non-profits taking up the challenge.
Florida-based Liberty Counsel, for instance, has announced it is challenging vaccine requirements slapped on by employers, like United Airlines, for allegedly refusing to accommodate religious exemptions.
And, while not an employment related case, Liberty Counsel also secured religious exemptions from a vaccine mandate for college students attending Loyola University of Chicago.
As vaccine mandates mount, Younes said employers and other entities should expect legal challenges to also arise.
Gerald Maatman, an attorney at the firm of Seyfarth Shaw, in Chicago, who represents a host of employers, said it is essential for employers to carefully craft their policies to align with not only science, but also with rapidly evolving laws and regulations.
For some employers, Maatman said, the risk from such potential lawsuits could keep them from imposing more stringent vaccine rules on their workforce. Others could be dissuaded by the threat of losing employees at a time in which many businesses already struggle to find workers.
But, he said, many others will move ahead, secure in their reliance on the “at will” employment doctrine.
“The majority of employers still retain great latitude to control their business how they wish and threats of lawsuits in the private sector will likely fall on deaf ears,” Maatman said.
He noted employers should take account for various exceptions, such as for “disability and religious exemptions.” For such employees, employers may consider allowing them to work from home for the time being, as situations may allow.
“But even those situations are on a case-by-case basis and should not alone stop a private employer from implementing a mandate,” Maatman said. “Employers may face labor shortage issues if they fire people who refuse to be vaccinated, but it may pale in comparison to a PR or media crisis, if it is found out that the employer did nothing to prevent or curb the virus.”
EXEMPTIONS REQUIRED?
Attorney Austin Davies, of Rockford, agreed that employers have the ability, under the law, to require vaccinations for their workers.
However, he noted Illinois’ Health Care Right of Conscience Act requires employers, both public and private, to accept “conscientious objections and religious exemptions to mandatory vaccinations.”
Further, Davies said, the law prohibits employers from inquiring “into the validity of an employee’s religious belief or conscientious conviction” concerning vaccines.
“The reason for this is that such belief or conviction is personal and not subject to objective proof,” Davies said. “It is improper for both employer and court of law to inquire as to the correctness of a religious belief or conscientious conviction.
“However, a person’s sincerity may be called into question, if a person’s conduct is inconsistent with their stated reasons for exemption.”
He encouraged everyone seeking such an exemption to work through the process with their employer, and complete all forms provided to establish such a claim to exemption.
“All that is required is a personal statement describing what religious beliefs or conscientious convictions prohibit you from receiving a particular vaccine, or any vaccine,” Davies said.
He advised would-be exemption claimants to refrain from invoking science-based arguments, or concerns about “negative side-effects” or the federal vaccine approval process, when filing exemption requests.
Further, Younes stressed that any exemptions secured from employers will be limited only to that particular circumstance. The exemption would not carry over into any other sphere of life, setting the stage for potentially lengthy repeated exemption request review processes, with uncertain outcomes.
“Each entity comes up with its own rules,” said Younes. “It’s not going to be a smooth or easy process, and it’s something people will really need to consider, if they’re going to object, and seek that exemption.”