Published July 30, 2021
Yesterday President Biden announced that all federal workers who do not get vaccinated for COVID-19 will face a series of burdens and intrusions designed to raise the costs of not submitting to the shot(s). This is a threat to civil liberties that violates the Americans with Disabilities Act, but probably not in the way you think.
No COVID-19 vaccine on the market has yet been granted full FDA approval, only Emergency Use Authorization, which means, according to statute, that Americans have “the option to accept or refuse administration of the product.” FDCA § 564(e)(1)(A)(ii)(III). In a shoddy legal memo, Biden DOJ appointee Dawn Johnsen has interpreted this statutory provision as merely informing people of their right to face severe consequences for opting-out, such as being summarily fired by their government employer. This, despite longstanding precedent from both a federal court and the FDA recognizing that military members are protected from forced administration of unapproved vaccines, even though their rights are generally more attenuated than other federal employees.
But that was then, this is now. According to our scare-monger-in-chief, vaccine dissenters practically have a death wish: “if you’re out there unvaccinated, you don’t have to die . . . get the vaccine.”
From now on, everyone working for the federal government will be asked for their vaccine papers and all undocumented federal workers and contractors “will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.” If you think these are draconian measures, you are right, and that is precisely the point. In a moment of candor, “Biden aides” admitted to their friends at CNN that the goal “is to render being unvaccinated so burdensome that those who haven’t received shots will have little choice other than to get them.”
This vindictiveness, more than anything, is what renders Biden’s coercive COVID testing flatly unlawful.
The Americans with Disabilities Act, which I had the honor of enforcing as Civil Rights Director at the Department of Health and Human Services, prohibits discrimination against persons with disabilities in both private and public employment. The ADA provides that employers “shall not require a medical examination . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S. Code § 12112(d)(4)(A). Note, this prohibition is not limited to medical exams specifically related to disabilities or impacting persons with disabilities. It covers all medical exams for all employees. (ADA regulations confirm this fact, compare 29 CFR § 1630.14(b)(3) with (c)).
Biden’s COVID-19 tests are clearly medical exams that are being mandated as a condition of employment, so the ADA protections apply. The Biden administration will claim it has a legitimate business need, but it will be too late because it has already admitted that its actual purpose is bullying. Not that we needed the admission. To say that science requires a complete travel ban on undocumented federal employees, even when masked, is risible. If masks have lost their effectiveness, one wonders why Biden is rushing to reimpose mask mandates everywhere, including on kindergarteners.
That Biden announced no exceptions to the mandated nasal swabbing makes his policies all the more vulnerable. The best test case will be those retrograde employees who have already had COVID-19 but decline further prophylactic medical interventions. Biden will subject them to near-constant Q-tip probing even though they, like those already vaccinated, are much less unlikely to be infected and pass it to others. Furthermore, according to the Director of the Centers for Disease Control and Prevention, the amount of virus in breakthrough infection cases in vaccinated people “is pretty similar to the amount of virus in [infected] unvaccinated people.” To connect the dots, yes, people who have recovered from COVID-19 can in some cases get the virus, get reinfected and pass the virus, but we now know that the same holds true for vaccinated persons, yet only the first group of persons will be subject to bi-weekly medical exams. That’s irrational, unless, of course, the point is not infection control, but making the lives of every last unvaccinated person as miserable as possible. Lack of consistency and evidence of pretext are killer arguments against mandated medical tests under the ADA and should be deployed immediately in lawsuits. Lots of them.
Some argue that even if irrational or retaliatory, forced COVID testing does not impose a big enough indignity to sue over. Let’s not be naïve. The DOJ memo and yesterday’s announcement are merely dress rehearsals for the ultimate goal of imposing a national vaccine mandate. When asked yesterday about whether he has the power to do such a thing, Biden said it is still an open question. In truth, the answer comes down to one thing — whether or not Biden thinks he can get away with it. Like the proverbial slow-boiling frog, if there is not a strong reaction now, we’ll all be cooked soon.
Unfortunately, Biden was given some cover by HHS’s Office of the General Counsel during the Trump administration, which inexplicably green-lighted a national moratorium on apartment evictions during the COVID emergency. Although a majority of the Supreme Court apparently agrees that this stunt was patently unlawful, Biden can repurpose HHS’s expanded claim of COVID emergency powers to support a seemingly more on point national vaccine mandate.
We can expect the mandate to be national in scope because, according to Biden, if you are unvaccinated, “you present a problem to yourself, to your family and to those with whom you work.” This indiscriminate vax-shaming is not based on science but ideology. Are you a problem to your loved ones if they have all been vaccinated? Are you a problem to colleagues if you are working 100 percent remotely? What are the risks if you live in an area will low COVID spread? Are you a problem if you always wear masks and socially distance? And what if you’ve already had COVID-19?
We know the answers. Like a glitch in the Matrix that must be corrected, the mere fact that you decline the vaccine defines you as a “problem” with but one logical solution. Force.
Editor’s note: This piece has been updated to reflect that the HHS Office of the General Counsel, not the General Counsel himself, allowed the eviction moratorium. The author apologizes for the error.
Roger Severino is a former senior fellow at the Ethics and Public Policy Center.