PlagueWatch 2020-23 - Coronavirus

[dudog84]

CYA is not going to drive a bunch of employers and other private entities to require vaccines. In fact, the legal pitfalls of requiring vaccines probably outweigh the risk of not requiring vaccines in a typical situation. It is complicated to put together a program that complies with applicable laws, and even harder to ensure that a well designed program is properly enforced. And even then, you are exposed to lawsuits from people who are aggrieved by a vaccine requirement.

On the other hand, hitting an employer for liability for an outbreak would be difficult in most instances. First, you have to show causation, which is not easy given the incubation period and invisible nature of infection.

Second, you need a theory of liability. Let’s say your theory is that the employer had a duty to protect its employees from infection and that the employer breached that duty by failing to require that all employees get a vaccine (subject to the required exceptions). The employer can point to applicable guidance from authorities, none of whom require vaccines, and argue that there was no breach. If the employer followed applicable guidance, that’s as close to a safe harbor as I can think of in this context.

If someone is thinking about this differently, I’d like to hear it. But my guess is that employers who require vaccines will do that because they think that is the right thing to do, regardless of the legal and employee relation risks.

If only we could just count on Americans to do the right thing.

"You can always count on Americans to do the right thing - after they've tried everything else." - Winston Churchill

What would Winnie think of us now?

[CrazyNotCrazie]

I agree. But if one believes (as I do) that the vast majority of these folks will never change their mind, don’t we open things up and try to run the course quickly rather than going through a prolonged loop? It seems the longer it goes, the more varieties of mutations are inevitable.

I wish we could change their minds, but I would go into PPB territory to state why I think that will not happen or the parties at blame for that.

With regards to changing their minds, see the attached published by the New York Post (owned by Murdoch, who owns Fox News). Title for those who don't want to click through is "Trump gives thumbs up on Post's push for lifesaving COVID vaccine". There's a lot I don't like about it but if this is what it takes, I'll take it.

https://nypost.com/2021/04/22/trump-...covid-vaccine/

[Bostondevil]

CYA is not going to drive a bunch of employers and other private entities to require vaccines. In fact, the legal pitfalls of requiring vaccines probably outweigh the risk of not requiring vaccines in a typical situation. It is complicated to put together a program that complies with applicable laws, and even harder to ensure that a well designed program is properly enforced. And even then, you are exposed to lawsuits from people who are aggrieved by a vaccine requirement.

On the other hand, hitting an employer for liability for an outbreak would be difficult in most instances. First, you have to show causation, which is not easy given the incubation period and invisible nature of infection.

Second, you need a theory of liability. Let’s say your theory is that the employer had a duty to protect its employees from infection and that the employer breached that duty by failing to require that all employees get a vaccine (subject to the required exceptions). The employer can point to applicable guidance from authorities, none of whom require vaccines, and argue that there was no breach. If the employer followed applicable guidance, that’s as close to a safe harbor as I can think of in this context.

If someone is thinking about this differently, I’d like to hear it. But my guess is that employers who require vaccines will do that because they think that is the right thing to do, regardless of the legal and employee relation risks.

I work somewhere that already requires employees to get flu shots. I am sure they will require covid vaccinations once they are fully approved. But yes, I would put my employer, a hospital, in the camp of requiring vaccines because it is the right thing to do. Although I agree there are some workplaces that won't require it, there are many that will. And you just focused on the "you can't work here". Cruises, international air travel, moving into assisted living, coaching youth sports - do you honestly believe those private entities aren't going to require proof of vaccination? (Participation in high school sports already requires other vaccinations.) Cruise ships in particular are going to have to do something to restore public confidence. They had the disease incubator rep before covid hit. So, I'm mostly giving examples of how certain types of businesses and activities return to something resembling 2019, cause business as pre-pandemic usual probably is not going to work. The majority of people in this country are going to get vaccinated and I suspect they are going to spend their money at places that offer the best assurances that they aren't going to be exposed when they come there, especially if they are bringing their kids/grandkids. Restaurants and bars, that's a sticky wicket. I don't know how they are going to assure the public that it's safe to go there because I agree, requiring proof of vaccination to eat at a restaurant will never happen.

Businesses that have people working in close contact with others that do not offer paid sick leave will get sued. Docking workers' pay when they are sick encourages sick people to come to work. I don't see that being a viable business model moving forward. Those businesses might start requiring vaccinations because vaccines are much cheaper than paying people to stay home.

[cato]

Businesses that have people working in close contact with others that do not offer paid sick leave will get sued. Docking workers' pay when they are sick encourages sick people to come to work. I don't see that being a viable business model moving forward. Those businesses might start requiring vaccinations because vaccines are much cheaper than paying people to stay home.

We can agree to disagree, but you are glossing over two key points in your analysis: a large chunk of employees and customers will refuse to get a vaccine. So requiring a vaccine will impact business, just like deciding to encourage a vaccine but not require one. Employers will be sued (discrimination claims are much more common than liability claims based on communicable disease) and will lose customers and employees. Hiring is very difficult right now, so that is not a small cost to consider.

There may be a gain from other customers and employees who appreciate the policy, but since the vast majority of people who want a vaccine can get one, I think it will be a net negative for most businesses.

FWIW, this is not a theoretical issue for me as I’m in-house counsel at a business with employees and locations in several states (red, purple and blue). I will definitively be interested to see how this issue evolves.

[CrazyNotCrazie]

We can agree to disagree, but you are glossing over two key points in your analysis: a large chunk of employees and customers will refuse to get a vaccine. So requiring a vaccine will impact business, just like deciding to encourage a vaccine but not require one. Employers will be sued (discrimination claims are much more common than liability claims based on communicable disease) and will lose customers and employees. Hiring is very difficult right now, so that is not a small cost to consider.

There may be a gain from other customers and employees who appreciate the policy, but since the vast majority of people who want a vaccine can get one, I think it will be a net negative for most businesses.

FWIW, this is not a theoretical issue for me as I’m in-house counsel at a business with employees and locations in several states (red, purple and blue). I will definitively be interested to see how this issue evolves.

The flip side of this is that if I am one of the majority of Americans who gets vaccinated and I am choosing between two jobs, one that requires every employee to be vaccinated and one that doesn't, all things being equal, I will choose the one that requires vaccinations. The main reason would be for my safety. The secondary reason is that that is a signal that their values align with mine. So from a hiring perspective it could hurt employers in both directions.

[aimo]

I work somewhere that already requires employees to get flu shots.

Ditto. And, interestingly enough, our flu vaccination rate this year was 74% (this was after a "crackdown" due to the pandemic. Those not getting vaccinated had to provide a valid medical or religious reason, nothing else). Our COVID rate? 95%, and it's NOT been made mandatory, yet. I guess some medical reasons were less dire than getting COVID and some religious ones . . . well, same thing!

[cato]

The flip side of this is that if I am one of the majority of Americans who gets vaccinated and I am choosing between two jobs, one that requires every employee to be vaccinated and one that doesn't, all things being equal, I will choose the one that requires vaccinations. The main reason would be for my safety. The secondary reason is that that is a signal that their values align with mine. So from a hiring perspective it could hurt employers in both directions.

Actually, it *will* hurt most employers and businesses in both directions. That is unavoidable in America today when something becomes politicized, as both Covid specifically and vaccine requirements generally have been. There are no easy answers and I’m sure that many people will reach different conclusions. Some will do so in their best business judgment and others with do so based on their personal worldview.

[budwom]

Actually, it *will* hurt most employers and businesses in both directions. That is unavoidable in America today when something becomes politicized, as both Covid specifically and vaccine requirements generally have been. There are no easy answers and I’m sure that many people will reach different conclusions. Some will do so in their best business judgment and others with do so based on their personal worldview.

I'd love to be hearing the internal conversations (just for example) among the airline CEOs...they know a double-edged sword when they see one...

[BlueDevil2K]

I do think we mostly agree, with the caveats as stated above. One other difference - I'm suggesting that even if no American got the J&J vaccine ever again, we'd hit the point where everybody who wants a vaccine could get one within a few weeks. I believe the supply vs. demand curve is about to be that inverted - the extra J&J supply might make a few days of difference for some people, but its absence won't be statistically that significant.

Circling back, a few interesting articles that I've seen over the past few days...

https://www.politico.com/news/2021/0...vaccine-484356
https://www.wral.com/supply-outpaces...cine/19638237/
https://www.cnn.com/2021/04/21/healt...day/index.html

(Quick summary - even without J&J, supply is broadly starting to exceed demands...and coupled with J&J's struggles, they're not likely to be a big contributor here in the short run regardless of whether vaccinating with J&J resumes...)

[dudog84]

I'd love to be hearing the internal conversations (just for example) among the airline CEOs...they know a double-edged sword when they see one...

The question this brought to my mind is will market sectors stick together? Will Delta all the way down to Spirit institute the same policy? Same with cruise lines. Could/would MLB, NBA, NFL make it a requirement at games instead of individual owners making the decision?

P.S. A while back somebody posted a link that showed state-by-state vaccination percentages. I can't find it, anyone have it handy?

[budwom]

The question this brought to my mind is will market sectors stick together? Will Delta all the way down to Spirit institute the same policy? Same with cruise lines. Could/would MLB, NBA, NFL make it a requirement at games instead of individual owners making the decision?

P.S. A while back somebody posted a link that showed state-by-state vaccination percentages. I can't find it, anyone have it handy?

exactly, the group dynamics are going to be fascinating...I suspect a lot of CEOs see strength in numbers, but I can't quite visualize how you (for example) make me feel safe to fly while at the same time reassuring my bonehead neighbor that his freedoms aren't being trampled. A mish mash of various policies for various airlines, or lines of business, would certainly be confusing. But we're a country that has trouble coalescing around common solutions these days...

[rsvman]

We can agree to disagree, but you are glossing over two key points in your analysis: a large chunk of employees and customers will refuse to get a vaccine. So requiring a vaccine will impact business, just like deciding to encourage a vaccine but not require one. Employers will be sued (discrimination claims are much more common than liability claims based on communicable disease) and will lose customers and employees. Hiring is very difficult right now, so that is not a small cost to consider.

There may be a gain from other customers and employees who appreciate the policy, but since the vast majority of people who want a vaccine can get one, I think it will be a net negative for most businesses.

FWIW, this is not a theoretical issue for me as I’m in-house counsel at a business with employees and locations in several states (red, purple and blue). I will definitively be interested to see how this issue evolves.

There is another approach that is halfway between encouraging vaccination and requiring it, and it is requiring all employees to either get vaccinated or sign a paper saying that they refuse it.

With flu when shots were "offered" for hospital workers, somewhere between 35 and 60% of eligible workers took advantage. When employees were REQUIRED to either get the vaccine or sign papers refusing it, the level of acceptance went up to about 85-90%. It never gets to 100% even when a vaccine is "mandated." My hospital's idea of mandating flu vaccination was that if you didn't get it, you had to wear a mask all winter long. Everybody was incredulous. "Nobody could do THAT! It's untenable!" My how times have changed.

Even as a raving pro-vaccine advocate, I'm not all that keen on "mandating" vaccines, at least in the absence of demonstrable harm by not mandating them. Ideally I would love it if we could get almost everybody vaccinated without resorting to truly taking away autonomy completely. I know among my peers I am pretty much on an island all by myself.

[Bluedog]

There is another approach that is halfway between encouraging vaccination and requiring it, and it is requiring all employees to either get vaccinated or sign a paper saying that they refuse it.

With flu when shots were "offered" for hospital workers, somewhere between 35 and 60% of eligible workers took advantage. When employees were REQUIRED to either get the vaccine or sign papers refusing it, the level of acceptance went up to about 85-90%. It never gets to 100% even when a vaccine is "mandated." My hospital's idea of mandating flu vaccination was that if you didn't get it, you had to wear a mask all winter long. Everybody was incredulous. "Nobody could do THAT! It's untenable!" My how times have changed.

Even as a raving pro-vaccine advocate, I'm not all that keen on "mandating" vaccines, at least in the absence of demonstrable harm by not mandating them. Ideally I would love it if we could get almost everybody vaccinated without resorting to truly taking away autonomy completely. I know among my peers I am pretty much on an island all by myself.

My company is kinda doing this. For any on-site/client travel requests, you either have to provide proof of vaccination or sign a waiver of liability.

[Skydog]

... When employees were REQUIRED to either get the vaccine or sign papers refusing it, the level of acceptance went up to about 85-90%. It never gets to 100% even when a vaccine is "mandated." My hospital's idea of mandating flu vaccination was that if you didn't get it, you had to wear a mask all winter long. Everybody was incredulous. "Nobody could do THAT! It's untenable!" My how times have changed.

Even as a raving pro-vaccine advocate, I'm not all that keen on "mandating" vaccines, at least in the absence of demonstrable harm by not mandating them. Ideally I would love it if we could get almost everybody vaccinated without resorting to truly taking away autonomy completely. I know among my peers I am pretty much on an island all by myself.

How about requiring employees who refuse the vaccine to have a big scarlet letter (or letters) tattooed on their foreheads? I was thinking something like "N" for no vaccine, numbskull or nincompoop? Or maybe it should be more specific, signifying they are vaccine deniers with a big scarlet "VD"?

[MChambers]

fully_vaccinated.jpg

[sagegrouse]

This article is an interesting view of the worldwide distribution of vaccines. IT's from the Washington Post and is partially based on data from Duke:

A team at Duke University’s Global Health Innovation Center found that high-income countries locked up 53 percent of near-term vaccine supply. They estimate that the world’s poorest 92 countries will not be able to reach a vaccination rate of 60 percent of their populations until 2023 or later.

[ClemmonsDevil]

How about requiring employees who refuse the vaccine to have a big scarlet letter (or letters) tattooed on their foreheads? I was thinking something like "N" for no vaccine, numbskull or nincompoop? Or maybe it should be more specific, signifying they are vaccine deniers with a big scarlet "VD"?

I already have the VD tattoo. It doesn't mean what you think...

[MChambers]

I saw this on social media and thought it was worth repeating here:

An epidemiologist, an ICU doctor, and a scientist walk into a bar…

Just kidding. They know better.

[johnb]

...My hospital's idea of mandating flu vaccination was that if you didn't get it, you had to wear a mask all winter long. Everybody was incredulous. "Nobody could do THAT! It's untenable!" My how times have changed...

My hospital also used to mandate either the flu shot or a winter-long mask. I don’t know what would have happened to the careers of professionals who opted for masks, but it wouldn’t have been a boost.

Otoh, there were always some hospital people who worked in housekeeping and food services who wore masks for months every winter. I never asked why they declined the vaccine or how they processed that if it were dangerous, why were all the physicians and scientists (who’d presumably be in on the dangerousness), willing to get the shot themselves.

[johnb]

I haven’t seen the Venn diagram, but it’s be interesting to see the overlap between anti vax and anti mask (significant but not complete?); either way, some of those folks might want to anticipate facing a Hobbesian choice in 2022: “vax or mask? Sheesh.”

Which made me look up Hobbesian choice, since I was a little vague on its meaning, and it turns out I was vague on its meaning because I was wrong on 2 counts. It’s not Hobbesian, it’s Hobson’s Choice, after a Cambridge stable owner in about 1600; he’d show a prospective renter the dozens of horses he owned but offer only the choice of the horse nearest the door or none at all. Ie, it’s an illusion of choice. Thomas Hobbes, meanwhile, is a philosopher from a few years after Hobson (and Shakespeare), who presumably said and wrote many things, but I only know him from his pithy summary of life, that it’s “solitary, poor, nasty, brutish, and short.” Brutish, incidentally, got autocorrected to British, which makes me worry that my iPad didn’t get the memo about Eurocentrism. It also seems that the first written reference to Hobson’s choice occurred years after the guy had died, so my bet is that this “choice” was first scrawled by shaking quill on the back of a damp coaster by a couple of 17th century Cambridge undergrads as they got towards last call at their 2nd favorite pub.

Anyway, for the folks who are both anti vax and anti mask, they could be said to be about to face a Morton’s fork, which is a choice between 2 undesirable options, which is probably under the general umbrella of a dilemma. This contrasts with a false dilemma in which it appears that there are 2 choices but there are actually others. Extortion, meanwhile, is obtaining benefit through coercion.

So, it seems to me that at least some anti vax/anti mask people would like to have a Hobson’s choice (“horse/mask/vax or nothing? I’ll take nothing, thank you very much.”). They’re worried they’re facing the choice between undesirable options, or Morton’s fork (“vaccine/mask or you can’t go bowling or on an airplane or to work”), which they might view as kinda like extortion (liberal secular society is seeking a benefit—maybe safety for the larger group, or maybe an implantable tracking device within the vaccine dispensed via nanotechnology—that the society (maybe millions of people, maybe a cabal of elites) is ruthlessly forcing via coercion.

Most other people do recognize that there’s some dilemma. Overall, for example, I’d rather not have gotten pierced by vaccine needles or had q tips periodically shoved into my sinus cavity for 10 seconds, or religiously and ridiculously worn a mask in a warm, breezy dog park while a full 20 feet from other humans, or learned to make pizza from scratch, or taught my 10 year old to zoom so she could more effectively use TikTok in her pajamas while “attending” school, or learned to recognize acquaintances by their eyebrows, or genuinely debated the risk/benefit of using Clorox on apples, but I didn’t consciously debate these when they felt like the right choice. Once my internal debate meter gets to, say, 65% confidence that a moderate effort is going to avoid bad or elicit good, I don’t generally worry.

All that brings me back to Hobson and to Hobbes, who died a little over 200 years before the invention of basketball in 1891, which was an exact century before our 1991 NCAA championship. I’m fairly quick to make a Hobson’s choice rather than face a Hobbesian life (solitary, poor, nasty, brutish, and short). But then again, while I enjoy Bond and Bourne as much as anyone, I’ve never been able to believe in all-powerful anti-heroes who can also keep their mouths shut (ie, cabals just don’t do it for me).