Why Now Is the Most Critical Moment of the Vaccine Mandate Era
Private sector mandates have become a new normal in New York, legal cases being decided here will have far-reaching consequences, and regulatory moves behind the scenes seek to expand executive power.
A few days ago, I spoke with a woman who’s out of work. She’s a fitness instructor who used to make a living giving classes to seniors, and she’s a senior herself. When New York City rolled out COVID-19 vaccine mandates in the fall of 2021, employees at the places where she taught were required to get vaccinated. But Audrey, the instructor, didn’t want to take the shot.
She was an early skeptic of the vaccines and had religious objections to them. One day when she showed up to teach a class, she was turned away at the door. She lost all of her teaching jobs except for one Zoom class.
Audrey wasn’t alone in her predicament back in 2021. Thousands of New York City municipal employees and an unknowable number of workers in the private sector got the axe then and in 2022, as the City’s sweeping mandates made employment all but unattainable for the unvaccinated.
Workers who defied the mandates pieced together odd jobs to cover their bills, ran through their savings, and sold their homes to get by. Many if not most were not able to receive unemployment benefits.
By the time the Adams administration lifted the private sector mandate in November 2022 and the public sector mandate in February 2023, many workers had left the state, unable to hang on without steady employment in one of the world’s most expensive cities.
For Audrey, nothing changed when the mandates lifted. The organizations she used to work for kept their requirements in place, perhaps encouraged by the Adams administration’s exhortation to businesses: “New York City continues to strongly urge private employers to put in place their own vaccine mandates.”
Again, Audrey wasn’t alone. Most City employees who had been put out of work weren’t reinstated, and in the private sector an unknown number of employers like Audrey’s kept their doors closed to unvaccinated New Yorkers.
On social media, I often hear a refrain about the mandates: “Never forget!” In New York City, people like Audrey haven’t forgotten, because vaccine mandates aren’t in the past. They are a new normal, a new item employers can add to their list of job requirements at will. The mandate era hasn’t ended here; it just throttled down.
To be sure, many employers dropped their requirements when the City mandates ended. But a quick search of job openings in New York City finds them sprinkled with vaccination requirements. Want to work as an art therapist, get a job at a call center, do house cleaning, or coordinate security at Yankee Stadium? You’ll need proof of COVID-19 vaccination for that.
The fact that we’ve quietly slid into this new normal as the pandemic has been widely declared over is just one of the reasons right now is the most critical moment of the vaccine mandate era.
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The Battle in the Courts
As you might expect, some of those fired workers went to court. Dozens of individual lawsuits have been working their way through the legal system here in New York City, and several major cases are demanding damages and class action certification that would make their resolutions applicable to a multitude of affected workers.
Many of those cases are now in appeals, inching closer to the point when judges will hand down final decisions with far-reaching consequences for all of us. Both the major lawsuits with multiple plaintiffs and the individual cases are addressing core issues of constitutional law, labor protections, and civil, religious, and human rights.
Most of the people suing are—or were—New York City municipal workers. Public sector employees here have some of the strongest, most extensive legal protections in the country, and within that group, perhaps the most protected are those employed by the New York City Department of Education.
The City’s roughly 148,000 teachers, principals, paraprofessionals, and other school staff are protected by union contracts, state civil service and labor laws, state education law, city human rights laws, and federal laws.
And yet, when the de Blasio administration declared a state of emergency and decided that getting everyone vaccinated was more important than upholding the right to informed consent, all of those protections went out the window. The administration’s executive orders overrode all. The teachers were the first group to come under a City mandate in the fall of 2021, and the rest of NYC’s civil servants soon followed.
That’s why the cases being decided over the next year or two will reach beyond determining how we handle public health emergencies. They will help determine whether we go forward under the rule of law or enter a new era of fair-weather legal protections, where citizens’ rights and legal protections are enforced when the powers that be are amenable and swept aside by edicts when they are not.
The fact that New Yorkers have some of the strongest legal protections in the nation make the legal battles here especially significant. If authoritarian decrees can override the law here, they can do it anywhere.
Big Powers Have Big Plans
The other major arena where our future is being decided is in legislatures and regulatory bodies—some well known and others obscure. In New York, state legislators have spent recent months moving pro-mandate bills toward the governor’s signature.
Anti-mandate activists protested and lobbied hard all year against bills like A7154/S1531, which aims to create a government tracking system for adult vaccinations. The activists are now claiming success: New York’s legislative session has come to a close without pro-mandate proposals making much progress, and our lawmakers have left Albany for the summer.
But bureaucrats never rest, and what they’re busy cooking up may have much more impact than the bills languishing in committee. Journalist David Zweig recently reported on efforts by the Uniform Law Commission to codify expanded emergency powers granted to governors.
In the ULC’s draft of the Model Public-Health Emergency Authority Act, section 3 describes the relationship between a governor’s emergency powers and state laws:
“This section declares that, when circumstances meet the definition of a public-health emergency, this Act controls over other state laws for the sole purpose of responding to the public-health emergency.”
Section 9 lays out how emergency powers granted by the Act would relate to local laws and regulations:
“A public-health emergency order does not preempt an order, regulation, or ordinance of a political subdivision, except to the extent the order, regulation, or ordinance conflicts with the public-health emergency order.” [emphasis mine]
This sounds very much like the Act would grant the governor the authority to override many of the protections that are right now being cited in lawsuits by New Yorkers who were fired under mandates—protections like New York State’s Civil Service Law and Education Law, New York City’s Human Rights Law, and other parts of the NYC’s Administrative Code.
The draft is due to be finalized this summer, and will then be available as a model for state legislators to adopt. As the draft document notes, its predecessor, the 2001 Model State Emergency Health Powers Act, was “adopted in substantial part” by a majority of state legislatures. For New Yorkers, that means we could see new MPHEAA-inspired bills appear during the 2024 state legislative session.
In the meantime, there are momentous things afoot at the international level. The World Health Organization is finalizing a new pandemic “prevention, preparedness and response” treaty and amendments to its legally binding International Health Regulations that detail an international system of “digital health documents,” along with many other health-related policies.
Critics and protesters who call attention to these moves by global bureaucrats are often mocked as conspiracy theorists, but there’s nothing theoretical about the WHO regulations. Just a few days ago the organization announced the launch of “a global system that will help facilitate global mobility and protect citizens across the world from on-going and future health threats, including pandemics.”
What that verbiage means is the WHO is expanding the European Union’s system of digital COVID-19 certification to create a global system. The EU system was used in some European Union member countries to bar the unvaccinated from public venues and events, transportation, and employment.
And that’s just the beginning of what the WHO has planned. As the organization’s press release says, “This is the first building block of the WHO Global Digital Health Certification Network (GDHCN) that will develop a wide range of digital products to deliver better health for all.”
The extent to which the binding IHR requirements will be able to override U.S. laws is currently a matter of debate, but it seems clear that proponents of mandates and health-based restrictions in our government would be happy to adopt them.
That is how all of the authoritarian pandemic measures were put in place—not through a democratic process of debating and creating laws, but by simply circumventing the entire legal system with a new set of rules created by bureaucrats and executive powers, and then ordering law enforcement agencies to enforce them.
That’s what happened with the regulations that protesters have dubbed the “Quarantine Camp” regulations. Governor Kathy Hochul’s administration introduced expanded state quarantine rules that would allow the health commissioner to have not only people infected with a contagious disease, but “all such persons as the State Commissioner of Health shall determine appropriate” put into involuntary quarantine by local law enforcement, at a location and for a duration of the health commissioner’s choosing. Those regulations were struck down by a New York State court in a case brought by attorney Bobbie Anne Cox, but the Hochul administration is appealing.
In a recent appellate court hearing in the case against New York State’s vaccine mandate for health care workers (which put an estimated 34,000 people out of work) attorney Sujata Gibson called out the Hochul administration for using a cyclical strategy to circumvent legal challenges to regulations: The state puts the regulations in place, fights any legal challenge in court, and if they lose, they withdraw the regulations and get the court decision against them vacated, only to reintroduce the regulations and repeat the whole cycle again.
Gibson is currently fighting the Hochul administration’s efforts to have the appellate court vacate the lower court decision that invalidated the health care worker mandate, after officials announced they will repeal the mandate. With no decision against that mandate in the case law, the path would be clear for them to introduce new mandates.
But What If I Think Mandates Are a Pretty Good Idea?
Most people reading this are probably opposed to mandates. I hope it will find its way to people who support them too. Vaccine mandates and related restrictions deserve a high-profile public debate, and now is the time to have it.
My coverage of this issue is focused on New York City, where we’ve had the most extensive COVID-19 vaccine mandates in the nation, but there are lawsuits and legislative proposals coming to fruition across the country. How the mandate issue is resolved may affect every American in very personal ways.
So, what if you think the COVID-19 vaccines were a miracle of modern medicine that saved countless lives in an emergency, and the mandates an unfortunate but necessary tool? What if you sympathize with the authorities and employers who tried—and are still trying—to make dissenters take the shot?
I would suggest that it’s time to debate not just the specifics of the COVID-19 pandemic policies, but the general principles. That’s what we’re establishing now through court decisions, regulatory changes, and employment practices.
The question now is whether your government, your employer, or an international bureaucracy should be granted the authority to dictate what medical procedures you must have and what pharmaceutical products you must consume.
It’s whether you should be deprived of an income, barred from public life and free movement, and even detained indefinitely at the discretion of authorities if you do not accept whatever medical intervention is required in the future.
During the height of the pandemic, many public figures called for the unvaccinated to be penalized. In New York City, those penalties have been delivered. If you support that approach in theory, I invite you to learn more about what it means in practice. Listen to Audrey and the many other New Yorkers who have explained how mandates have changed their lives on the New York Mandate Podcast.
You probably won’t agree with everything they have to say or share all of their beliefs, but you will gain insight into what mandating a medical intervention means in the context of real people’s lives—people who are raising families, running businesses, expecting children, facing illnesses, and just dealing with everything life brings.
Consider what you would do if authorities told you tomorrow that you had to take something you consider potentially harmful in order to help others and stay employed. What would your options be? What choice would you make? Would you be confident that authorities with that kind of power would always use it safely or wisely, or share your sense of civic responsibility?
The time to consider these questions is now.
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