Lies and Liability

There is something baffling happening in the United States right now. Well, to be fair, there are MANY things baffling happening in the country right now. But one thing in particular that has me scratching my head these days is why any company would mandate all employees to get the covid shot. I have a few theories as what may be driving this, but lacking any firm evidence, I’m not going to discuss those here. I’m also not sure whether these businesses are always consulting legal counsel before making this decision, or–if they are–whether they are following advice of counsel. My hunch is that, in many instances, they aren’t.

The reason I say this is two-fold. First, even if someone were to contract COVID-19 and become ill, it would be virtually impossible to prove that that individual contracted the illness at work. People go places. Lots of places. How would anyone know whether it was contracted at work or (just as plausibly) at the myriad other places people visit every day, like grocery stores, restaurants, and movie theaters? The answer, of course, is there would be absolutely no way to discern this, rendering a plaintiff’s chance of success in court very, very minute. I suppose someone could argue that the employer’s policy not to demand that every employee get the injection was somehow reckless, but how is it any different from the businesses that are allowing customers to enter without proof of vaccination (a term I use loosely, and only because it’s the commonly accepted verbiage)? It isn’t. For the record, I don’t believe that businesses should force their employees or their customers to get vaccinated or show proof of any medical procedure, but my point is that one isn’t riskier than the other. And for businesses that are open to the public, such as the aforementioned stores, restaurants, and theaters, it is disingenuous to say that they are mandating their employees to get the shot for the good of public health, when customers are entering every day who haven’t received it. Perhaps disingenuous is too kind. It’s a lie.

The second reason mandates don’t makes sense to me from a legal perspective is that the business owner who enacts a mandate does face a very high probability of being served with multiple religious and disability discrimination lawsuits, as well as workers’ compensation claims for adverse reactions to the shot (which will also have the collateral effect of lost productivity, and therefore lost revenue, for the business). What’s more, these discrimination lawsuits are much more likely to be successful than a claim for damages due to contracting covid in the workplace as a result of the absence of a mandate.

In a nutshell, the employer who mandates the shot faces a very high risk of liability for imposing mandates, and the employer who doesn’t mandate the shot faces almost no liability. So what’s going on here?

Have all of the businesses (including colleges and universities which are–newsflash–also nothing more than businesses) in the country suddenly become altruistic, placing people over profits, willing to risk everything they have (including their bottom line) for the public health of their employees? Excuse me if I sound crass, or even a bit jaded, but I think not. Do many business owners care about their employees, and do many of them want them to be healthy and productive? Sure. But make no mistake, when a corporate executive is told that his/her business stands to lose millions of dollars if he/she does something, and lose almost no money if he/she doesn’t, the executive almost always chooses the second option. So in the vast majority of cases, I think a business that asserts it is mandating the shot for no reason other than to protect the health and safety of its employees is flat-out lying (there, I said it again).

The more likely explanation is that someone–or something–else is driving the bus. Again, I’m not going to speculate in this post as to who/what that/those entity(ies) may be, because I believe it’s irresponsible to make claims without firm evidence (but believe me, if I ever have it, I will reveal it). But the fact is this just doesn’t make sense. There’s got to be more to this story.

The viewpoints expressed in this blog post are those of the author alone, and are not representative of any organization or entity. Nothing in this post should be construed as legal or medical advice. Consult a licensed attorney for legal advice, and a licensed health care provider for medical advice.

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