That headlines’s a bit overconfident. I think the most you can say is there’s a potential, untested argument against mandates under federal law. But looking at the statute, I wouldn’t bet on it winning in court.
The law says that the Secretary of Health and Human Services shall establish such conditions on an Emergency Use Authorization as the Secretary “finds necessary or appropriate.” And these conditions may include “conditions designed to ensure that individuals to whom the product is administered are informed... of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.“
On face, that’s nowhere close to a ban on schools or employers mandating vaccines. It’s an optional requirement the government can impose regarding what information healthcare providers give patients. It doesn’t say anything about schools or employers. It doesn’t say anything about it being illegal to fire or refuse admission to an unvaccinated person.
Could an attorney try to convince a judge to read all those things into that sentence? That actually it imposes substantial constraints on employers and schools, even though neither is even mentioned? They could try. The right judge might even go for it. But I definitely wouldn’t count on it.
Hope it goes without saying but: I’m not writing this to discourage anyone from pushing back on mandates at their school or workplace. I just think people ought to understand the state of the law clearly when they do. You don’t want to go into a meeting with your boss thinking the law gives you clear-cut, slam-dunk protection against being fired when that’s not true.
Thank you for sharing!
That headlines’s a bit overconfident. I think the most you can say is there’s a potential, untested argument against mandates under federal law. But looking at the statute, I wouldn’t bet on it winning in court.
The law says that the Secretary of Health and Human Services shall establish such conditions on an Emergency Use Authorization as the Secretary “finds necessary or appropriate.” And these conditions may include “conditions designed to ensure that individuals to whom the product is administered are informed... of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.“
On face, that’s nowhere close to a ban on schools or employers mandating vaccines. It’s an optional requirement the government can impose regarding what information healthcare providers give patients. It doesn’t say anything about schools or employers. It doesn’t say anything about it being illegal to fire or refuse admission to an unvaccinated person.
Could an attorney try to convince a judge to read all those things into that sentence? That actually it imposes substantial constraints on employers and schools, even though neither is even mentioned? They could try. The right judge might even go for it. But I definitely wouldn’t count on it.
Hope it goes without saying but: I’m not writing this to discourage anyone from pushing back on mandates at their school or workplace. I just think people ought to understand the state of the law clearly when they do. You don’t want to go into a meeting with your boss thinking the law gives you clear-cut, slam-dunk protection against being fired when that’s not true.