SADOW: It Isn’t As Easy As JBE Thinks To Force Vaccines On State Workers

If Democrat Gov. John Bel Edwards feels like he can buck political tides additionally on the issue of vaccination requirements for state employees, he’ll have a lot more difficulty imposing his will.

Edwards last week became the first governor on the country, in a largely useless gesture if not harmful to children, to reestablish a face covering mandate in indoor public areas. Days later, as word began to spread that one Wuhan coronavirus vaccine may receive full approval for use in about a month, he floated the idea that he might emulate Democrat Pres. Joe Biden and Democrat New Orleans Mayor LaToya Cantrell who issued orders that their workforces, including contractors, prove vaccination or show proof regularly of negative virus testing.

But as both of these examples reveal, administration of such a mandate poses problems in its failure of specificity that greatly limit a faithful implementation such an the order, as well as raises broader questions of fairness. By way of example, the federal regulations leave undefined a number of important areas, such as obtaining verification of vaccinations or testing, noncompliance penalties, and implementation dates. New Orleans has issued no details at all about administrative issues such as these.

The largest looming question at the state level is whether Edwards can go over the heads of the Civil Service Commission, which operates independently of him and constitutionally has “broad and general rulemaking … powers for the administration and regulation of the classified service, including the power to adopt rules for regulating … employment conditions.” Likely only the SCSC can make vaccination or negative testing a condition of employment for members of the classified service.

Other hurdles remain as well for members of the unclassified service, which in the main include higher education and upper management of other state agencies. Hundreds of employees work for the other constitutional officers and boards of state government not under the control of Edwards, and these offices and panels would determine their own conditions of employment for their appointees that might disallow a vaccination/testing requirement. Technically, this also would include a number of boards, most prominently the governing boards in higher education.

Then there’s the role of unions. While little of state government is unionized, the state must honor its collective bargaining agreements that surely don’t permit it to impose a vaccination or negative testing requirement. Thus, it would have to negotiate with all recognized units to implement something like this.

That also may apply in higher education to unclassified employees with tenure, which is similar to classified service job protections. Governing boards, or system heads acting as their representatives, would have to make wholesale changes in their regulations to remove the option to be vaccinated or undergo testing from what are the extended job property rights of tenured employees.

Extending all of this to contractors makes things exponentially more difficult to implement. Most prominently, there’s no workable way to verify whether all of a contractor’s employees meet the standard. And if a major provider balks, the state couldn’t enforce it without substantial, perhaps life threatening to program clients, service interruptions.

And then there’s the issue of remote workers, which the federal dictate doesn’t distinguish. If the justification for laying down such a mandate is that it keeps the government workplace and the public that may frequent it safe from the virus, that doesn’t matter for remote workers. Any order lumping them in with on-site state workers surely would draw lawsuits if attempted to be enforced, but to differentiate between the two kinds creates a bureaucratic classification headache that in its definition also could spawn litigation.

Finally, while issuing such an order may bring about substantial informal compliance, creation of a formal regime to administer such a policy will take a considerable amount of time, even as the rationale for doing this is to address a recent surge in virus cases and resulting hospitalizations. By the time all the hoops have been gone through, the whole pandemic likely will be in the rearview mirror.

All in all, Edwards or whoever would have to go through a lot of trouble to require something difficult to enforce, sure to face legal challenge unless it had a lot of loopholes that would reduce its reach, and likely would become moot well before a workable system with any significant impact could begin operating. As well, justifying it on the basis that it saves lives makes for a poor argument, because if the problem is unvaccinated people can transmit the virus, the solution is to for those who feel their lives at risk is to get vaccinated, a process that costs them nothing and is widely available. Plus, as vaccinated individuals can transmit the virus, that cuts down on the idea’s efficacy further.

There is the goal of cutting transmissibility in general, not just in the state workspace. However, this raises a constitutional issue: why do state employees and contractors have to bear an additional burden to have their jobs or do business with the state to achieve an objective that has nothing to do with their jobs or business?

In the final analysis, this would be bad public policy, for it achieves little at great cost, especially compared to alternative options such as vaccination campaigns or even use of nonpharmaceutical interventions, some of which don’t bring many benefits but cost even less. Not that this ever has stopped Edwards, who has placed politics ahead of all other considerations in the making of policy about the virus, from poor decision-making on this account, and leopards don’t change their spots.

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