Terry H. Schwadron

Jan. 12, 2022

This is the week that federal agencies start taking harsher steps against employees who resist a government mandate for Covid vaccines or regular testing and masking.

Even as the Supreme Court considers whether a mandate can cover all private businesses with more than 100 employees, the order for federal employees is moving ahead. Enforcement had been delayed a few weeks to get by the holiday weeks.

Actions in the agencies likely will include warning letters about possible suspension and a usual escalation that could lead to firings.

According to various reports, the rate of government employee compliance is high but some agencies either do not reflect updated statistics or  have spelled out specific time frames for notifying employees of suspensions. At least a few thousand employees have not gotten the vaccine or presented a valid medical or religious exemption from the policy. 

Rather than press for firings, the White House had asked agencies to focus on education and counseling for the unvaccinated.

Throughout, Team Biden has made vaccines a centerpiece of fighting against Covid spread. Obviously, compliance by the 3.5 million federal workers is a necessary step towards that goal. Before the holidays, something like 92 percent of federal workers had received at least one jab.

Moreover, federal worker compliance is seen as setting a tone for other entities, including private businesses.

In any event, the enforcement question underscores a larger point: What is the price of insistence on resistance to public health requests, guidance or even mandates and who is served by enforcement?

The Continuing Challenge

Last Friday’s Supreme Court hearing on two challenges from Republican governors and business groups to mandates for businesses and hospitals to require public health measures was not helpful to the larger question.

Rather, the court’s conservative members relied on the language of authorizing legislation for the two agencies that would enforce the mandates. Basically, they were skeptical that those laws allow for mandated vaccinations for private businesses on the scale intended. The conservative majority appeared less concerned about disease than about legal authority – even with exemptions for medical or religious reasons.

Meanwhile, we know that about a third of the country refuses to take a vaccine, including those who are doing so over political ideology, and they consistently tell interviewers that they will not change their minds. And we know that Omicron, the latest Covid mutation, is continuing its surge at least for the next several weeks as case numbers, hospitalizations and deaths continue to increase, though with fewer severe cases and increasing questions about the count is collected.

There seems to be general agreement that Omicron is a harbinger for more mutations to emerge in an America that just has declared itself tired of Covid.

The current, almost useless bromide among medical and political leaders is to talk about “learning to live with Covid,” as if that provides an avenue for what to do.  To many, Living with Covid means getting vaccines, wearing masks inside and following public health protocols without shutting down our institutions, while to others, particularly anti-vax proponents, Living with Covid means ignoring it totally.

By contrast, the entire Civil Rights movement was based on the idea of civil disobedience knowing that some sort of punishment would ensue for personal protest. It’s quite a different model we see now.

What’s the Price of Resistance?

Over the two years of Covid, cities and states have set rules for attending concerts, for going to bars, restaurants if not churches, for taking the subway or getting on an airplane, for rehabbing school classrooms all in the name of public health safety.

Over the same period, we’ve seen almost all efforts by government to set rules find their way to the courts, where different judges have handed down mixed decisions. Any number of Republican governors have gone out of their way to pass bills or set orders to block cities and towns from enforcing a variety of mandates.

Still, tennis champion Novak Djokovic still thinks he should get a pass from Australian rules for declining a required jab, as have other selected sports stars who have been more explicit about their medical record.  Politicians including Rep. Marjorie Taylor Green (R-Ga.), proudly announced last week that she has run up $90,000 in fines for refusing to wear a mask in Congress. It’s my choice, they say out of frustration, resentful that anyone demands that they pay a price for that choice.

Ironically, enforcement among the military or National Guard or hospitals can result in a loss of service to others – over a claim of self-concern over the communal.

Now we’re starting to see the next level of frustration with the expressed anti-vax frustration.

Glenn C. Altschuler, a Cornell University professor, argued in an opinion column that the unvaccinated need to pay higher medical insurance rates through surcharges and encourage employers to deny paid time off for illness.

This follows what happened after smoking was declared a public health problem: Insurance companies were allowed to place a surcharge on medical insurance for anyone who uses a tobacco product four or more times per week.  Carriers rely on the honor system, but misrepresentation constitutes fraud, and in some states is a felony. Employers providing health insurance often require routine medical examinations, in which nicotine can be detected through samples of blood and urine.

Likewise, driving violations while driving under the influence of alcohol can result in higher auto insurance rates in many states.

Delta Airlines has a medical insurance surcharge of $200 per month for unvaccinated staffers and limits salary protection for those who miss work to workers who have been vaccinated and have had “breakthrough” infections. Since these policies took effect in November, Delta saw 94 percent of workers report vaccination.

There is no doubt that many will insist on vaccine or mask resistance, regardless of court decisions and government orders. The question: What is the price of individualism in a time of communal contagion?

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