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New York’s COVID-19 vaccine mandate for healthcare workers – It is legal in the eyes of the court

New York Governor Kathy Hochul is preparing to enforce the state’s COVID-19 vaccination deadline for healthcare workers.

To encourage vaccinations, more US firms turn to incentives -- and threats
Corporate America is turning more and more towards vaccination requirements - Copyright AFP/File KAREN BLEIER
Corporate America is turning more and more towards vaccination requirements - Copyright AFP/File KAREN BLEIER

New York Governor Kathy Hochul is preparing to enforce the state’s COVID-19 vaccination deadline for healthcare workers on Monday, with an emergency declaration and other options, including calling in healthcare workers from the National Guard to address any potential hospital staffing shortages. 

“I am monitoring the staffing situation closely and we have a plan to increase our health care workforce and help alleviate the burdens on our hospitals and other health care facilities,” Hochul said in a statement. “I commend all of the health care workers who have stepped up to get themselves vaccinated, and I urge all remaining health care workers who are unvaccinated to do so now so they can continue providing care.”

In August, Former New York Governor Andrew Cuomo announced that all healthcare workers must receive at least their first dose of a COVID-19 vaccine by September 27.  The regulation, issued by the New York Department of Health, also applies to out-of-state and contract medical staff who practice within New York. 

As part of the regulation announced in August, it was stipulated that those who are fired because of their refusal to get vaccinated won’t be able to receive unemployment insurance without a valid medical accommodation from a doctor, according to the Department of Labor. 

Needless to say, but the Civil Service Employees Association, members of the New York State Correctional Officers and Police Benevolent Association, and a group of medical workers are among those who have filed lawsuits challenging the state’s vaccine mandates.

Anti-vaccination activists protest in New York City on June 20, 2021 – Copyright AFP/File Fayez Nureldine

 Not getting vaccinated is a threat to public health

The public may be surprised to know that the U.S. Supreme Court has been fairly consistent when it comes to vaccinations, finding that mandatory vaccinations are constitutional. When one has to balance constitutional liberties, the Supreme Court has typically decided that the government’s duty to safeguard the health of its citizens, takes priority over some individual rights.

On the issue of vaccinations, the highest court has generally found that while freedom of belief may be absolute, freedom of action is not. There is no liberty to infect others with a communicable disease, just as there is no liberty to murder.

In a primer on legal challenges to vaccination, Edward C. Darden writes: “From the early 1900s, antivaccination lawsuits (including those against school districts) have been spectacularly unsuccessful.”

The biggest judicial precedent is in Jacobson v. Massachusetts (1905). Massachusetts was the first state to pass a law requiring vaccines for schoolchildren, in 1855. And by 1902, Massachusetts was one of 11 states requiring vaccination of school students.

That very same year, during a smallpox outbreak, public health officials in the City of Cambridge mandated that adult residents get the smallpox vaccine. Henning Jacobson refused and was consequently fined $5 (approximately $150 today). Jacobson argued that his Fourteenth Amendment right to liberty had been violated and that Cambridge’s mandate was “unreasonable, arbitrary, and oppressive.”

Hospital Corpsman 1st Class Diana Rodriguez administers a smallpox vaccine to a patient on the mess decks of the Nimitz-class aircraft carrier USS John C. Stennis (CVN 74) during immunizations in 2012. Source – US Navy/MC3 Kenneth Abbate/USS JOHN C. STENNIS (CVN 74)/U.S. Navy. Public Domain

With a seven-justice majority, the Supreme Court ruled that it was legitimately within the “police power” of a state to compel vaccination to protect the health and safety of its citizens. (Yes, we only had seven justices on the Supreme Court at that time).

Vaccinations were neither arbitrary nor oppressive if they did “not go so far beyond what was reasonably required for the safety of the public,” Justice John Marshall Harlan wrote.

This same ruling has been repeated over the ensuing years, and quite often, in fact. “Most court cases conclude that the public health of millions of U.S. kids trumps any individual objection,” writes Darden.

Interestingly, the Jacobson case has been cited as precedent more recently, like in challenges to face-mask mandates and stay-at-home orders during the COVID-19 pandemic.

Multiple studies have shown that full vaccination prevents infection with symptoms and hospitalisation, for both Alpha and Delta variants. — © AFP

On Friday, U.S. District Judge David Bunning in Covington, Kentucky ruled that a Cincinnati, Ohio-area healthcare provider could require its employees to get vaccinated against COVID-19 or risk losing their job.

The judge ruled that employees of St. Elizabeth Healthcare failed to establish that their individual liberties were being violated by the vaccine requirement of the hospital operator, which has the right to set employment terms.

Liberty and freedom are both words that have been the subject of tremendous debate for hundreds of years. Liberty is the state of being free from oppressive restrictions or control imposed by authority on one’s way of life, behavior, or political views, while freedom is the power or right to act, speak, or think as one wants.

However, when dealing with contagious diseases and how quickly they can spread, a medical necessity in the face of a pandemic might seem like tyranny to some, but think of this – When it comes to communicable disease, it’s the “liberty” of the pathogen that is the greatest threat.

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We are deeply saddened to announce the passing of our dear friend Karen Graham, who served as Editor-at-Large at Digital Journal. She was 78 years old. Karen's view of what is happening in our world was colored by her love of history and how the past influences events taking place today. Her belief in humankind's part in the care of the planet and our environment has led her to focus on the need for action in dealing with climate change. It was said by Geoffrey C. Ward, "Journalism is merely history's first draft." Everyone who writes about what is happening today is indeed, writing a small part of our history.

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