Editor’s Note:
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.”
This vindictiveness, more than anything, is what renders Biden’s coercive COVID testing flatly unlawful.
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 likely 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.