We are currently experiencing situations where private employers are “mandating” injections of COVID-19 treatments as a condition to continued employment. Some employees—many of whom have obviously done so against their better judgment—have elected to have the treatments in order to keep their jobs. Others have refused to do so and have either been fired or quit. Some have filed lawsuits. The question is: Can private employers legally mandate these medical treatments as a condition of employment?

As an initial point, I am unfamiliar with any prior instances where private (or government) employers in the United States have attempted to require an employee to take an experimental medical treatment as a condition of employment. We appear to be in uncharted legal waters here. However, most competent lawyers would tell you that the federal chief executive does not have the legal authority to “mandate” that private employers require this, contrary to what President Biden’s legal advisors might be telling him.

Also, note that I am not addressing the situation where these treatments are being required as a condition of obtaining employment in the first place, where prospective employees are free to reject the condition and look elsewhere for a job. I am addressing making the treatment a condition to remaining employed; there is a bit of “bait and switch” going on in such circumstances, particularly in the military or other jobs where employees are contractually bound to a certain length of service and cannot merely “quit” at will. That President Biden is calling for dishonorable discharges for service members who reject his unscientific mandate is particularly and patently egregious.

But even in private employment where the employees are free to quit at will, I think a good legal argument can be made that a private employer mandating an experimental medical treatment as a condition of employment may be illegal as against public policy. Here is the argument.

We all know and agree that private employers have certain freedoms when it comes to what they demand of their employees. Uniforms and hours/schedules come to mind.

But private employers are legally restricted from imposing certain conditions of employment and can be liable for violating those restrictions. For instance, an employer may not require an employee to commit an illegal act as a condition of employment, to have sex with a co-worker, to work more than 40 hours a week without overtime pay, and an employer may not fire an employee based on race, age, disability, etc. Most of these latter restrictions are found in statutes, that is true, but all of them have one overarching purpose and basis in common: They are designed to protect the persons and circumstances of employees and stop employers from infringing on their dignity as human beings.

Requiring an employee to take an experimental injection the employee does not agree to take as a condition to keeping their job similarly infringes on the dignity of the employee by coercing them to violate their conscience. The counter to this is the employer saying the shots “protect” their workforce and customers from contracting COVID and are thus beneficial to the business at hand. But none of these shots do that; people injected with these substances are NOT immune from getting the disease, nor are they prevented in any way from transmitting it to others. They also are dangerous; more than 6,000 people have been killed by the shots to date, and hundreds of thousands have been injured. This “business justification reason” by the employer thus proves to be illusory. At best (and this is also subject to serious scientific and statistical debate), they might “reduce” the symptoms of people who contract the virus, but that is a personal choice for each person to make.

I admit this is a novel argument, but I think the common law basis for it is sound: An employer may not require an employee, as a condition of employment, to violate their conscience when the required action does not actually advance the legitimate interests of the business in any way and may in fact cause the employee serious injury. Such medical force is also prohibited by the Nuremberg Code, which may or may not be a law that is enforceable by private citizens, but the existence of that Code further adds to the argument that mandating any medical treatment is against human dignity and free choice because it forces a medical procedure on a person without their consent. This prohibition is the entire basis for what is called “informed consent,” a standard legal rule in the medical profession for the last 50 years. Informed consent is so important, a doctor can be sued for not providing it.

I think any OSHA regulation that forces private employers to mandate these shots will be struck down by the federal courts as being arbitrary and capricious employment criteria, especially after the OSHA bureaucrats or the employer’s experts are forced to admit in a deposition that: (a) the shots do not prevent acquiring or transmitting the virus, (b) the shots may cause permanent and serious harm, and (c) getting the shots does not advance any legitimate business interest.

This is a commentary published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.

Jim Pikl

A former state judge, Mr. Pikl is an experienced trial and appellate lawyer. His practice has emphasized a wide range of commercial and consumer disputes, including class action and complex litigation involving multiple parties and claims.


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