Many private companies are mandating COVID vaccinations for employees, aligning with government policies and recommendations. Thus, employees continue to be pressured to vaccinate or lose their job. In response, various state legislatures, including Kentucky’s, are considering bills that limit private firms’ mandates.
One reaction to this, from a free-enterprise perspective, is that private firms should be able to establish workplace standards as they wish, within Constitutional and employment law, and legislatures should keep hands-off. I have concluded that this reaction is incorrect as it misses much of the picture.
Regarding government vaccine mandates, federal imposition of mandates on private employees mostly is enjoined by courts. My view is that the government mandate of COVID vaccines is highly inappropriate. Free societies should have a strong presumption of individual liberty, i.e., people decide for themselves. This presumption can be rebutted, and government intervene, but only with compelling circumstances and broadly accepted reasons.
Regarding COVID, this standard has not been met. Irrespective of one’s opinion, COVID/vaccination policy is very contentious, with distinguished scientists taking opposing positions. It is inconsistent with a free society, and common sense, to mandate vaccines where many people, including reputable experts, have reasonable concerns about their safety and efficacy.
But what about private sector vaccine mandates?
The common law provides protections of employee privacy/autonomy that are consistent with free enterprise. Basically, employers must justify any unusual intrusions on privacy/autonomy. Vaccination is such an intrusion, and justifying their wide use when there are real concerns about their safety and efficacy seems doubtful, even if the goal is a safer workplace. Though I am not a lawyer, it seems there are grounds for lawsuits. However, lawsuits resolve slowly and workers get no immediate relief.
Additionally, many companies issuing COVID mandates depend on government contracts, favorable regulation, tax breaks, etc. They are incentivized to remain in the good graces of government by following government pronouncements on COVID.
Other firms likely feel pressured by government agencies/regulators to follow the government line as well. Thus, many private firms are likely, in an opaque manner, acting in the government’s stead. This is not a situation where private firms are making choices in a market economy. Firms act under tacit regulations and incentives to follow government “recommendations.”
If government COVID vaccination mandates are inappropriate, a tacit mandate via regulatory pressure is surely undesirable. A legislative “hands-off” approach lets the tacit regulatory process continue. Much of this tacit regulation comes from federal and state executive branch agencies. The legislative branch can assert itself to counteract this and serve as immediate relief to workers whose jobs are at risk.
Some private firms, however, might decide that a vaccination mandate is best for their business. Nevertheless, federal and state governments have large budgetary and regulatory powers. That this power fails to substantially influence many firms’ policies is implausible.
Might the legislature allow private vaccine mandates, but only if they are not pressured or incentivized by the government? Perhaps, but it would be hard to enforce due to the difficulty of establishing whether a business acted due to government influence.
What are other legislative options?
Removing the excesses of the regulatory state that pressure businesses to adopt government “recommendations” is an ideal approach. Though worthwhile, it’s time-consuming and provides no immediate relief.
Other alternatives intervene in private businesses, so are not ideal. But they may be the best option under the circumstances.
One option is banning private business vaccination mandates. Normally, such prohibitions are objectionable from a free-enterprise perspective. However, it would offset the existing tacit interference by administrative agencies and offers immediate relief to workers. House Bill 28 originally was in this vein and passed the House, but with its limits on private business, mandates were removed.
Another alternative is requiring exemptions for religious, health, or conscientious reasons to COVID vaccine mandates. If easy to obtain, business mandates are nearly meaningless. Senate Bill 93, currently in Senate committee, takes this approach.
Another option requires businesses that mandate vaccinations to assume liability for any harm they cause. However, it is often difficult to determine the cause of a harm and is problematic to fully compensate someone for a devastating medical event. Still, this can deter businesses from mandating vaccines. House Bill 54, not yet heard by the House, follows this approach.
Each alternative is imperfect. But “doing nothing” is not free-enterprise friendly and cements in the status quo of tacit regulatory pressure by administrative agencies. This is a bad outcome and the state legislature should step up to prevent it.
Click here for more Op-Eds.
