Vaccine Mandates And Strategic Incompetence

On Monday, I speculated about the impact of Biden's workplace vaccine mandate on OSHA. It turns out that I underestimated the problem:

“[B]efore the first legal challenges against the mandate roll in, the Biden administration faces the more immediate conundrum of whether the chronically resource-strapped Occupational Safety and Health Administration (OSHA) is up to the task of enforcing it,” Business Insider noted Tuesday.

“It’s reeling from deep staffing cuts under the Trump administration, and its fines are relatively low and often fought out in long court battles,” experts told the outlet.

The Trump cuts left just “1,798 total OSHA inspectors, federal and state, coming out to one inspector per 82,881 workers and just $3.97 budgeted per covered worker,” according to Business Insider. According to a similar report from Reuters, “OSHA now has an estimated 800 safety and compliance inspectors to cover the more than 100,000 private-sector companies affected by the new rule.”

I've also seen commentary from lawyer-YouTuber Robert Barnes that almost all current mandates lack a key provision for religious exemption. While the OSHA workplace rule will likely take some time to roll out, and lawsuits against it can't be filed until it is, other local vaccine mandates are already being challenged for lack of a religious exemption. A New York State mandate has already been rejected by a federal judge:

A federal judge temporarily blocked the state of New York on Tuesday from forcing medical workers to be vaccinated after a group of health care workers sued, saying their Constitutional rights were violated because the state's mandate disallowed religious exemptions.

But this is the same state mandate that already forced a hospital to stop delivering babies when key staff quit rather than get the shot. The lack of religious exemption isn't the only basis for lawsuits against local mandates. A group of LAPD officers filed suit against a municipal mandate:

The lawsuit, filed Saturday in U.S. District Court in Los Angeles, claims the mandate violates the employees’ constitutional rights to privacy and due process, and asks the court to provide immediate and permanent relief from the requirement.

The six LAPD employees suing include individuals “who could not assert a medical or religious exemption” to the vaccine requirement, as well as individuals who have “experienced and recovered from COVID-19″ and have natural antibodies to fight the virus, the complaint states.

A major problem for vaccine mandates is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The HIPAA Privacy Rule regulates the use and disclosure of protected health information, which is any information that is held by a provider regarding health care. With a few exceptions like court order or limited law enforcement, this information, which includes vaccination status, may not be disclosed without the patient's authorization.

Requiring someone to show his vaccination certificate to an airline agent, TSA, bus driver, barber, bartender, bouncer, or maitre d' is clearly a violation of the HIPAA Privacy Rule. As far as I can see, nobody in the White House, OSHA, CDC, or local health departments has thought this through. For that matter, the religious exemption is extremely broad. You don't have to prove you're a member of a designated sect to be able to claim it, because any designation from the government of which beliefs qualify constitutes an establishment of religion and is a violation of the US First Amendment.

Thus if anyone demands my vaccination certificate, I can claim it's against my religion, full stop, and anyone, especially a bouncer or whatever, risks getting into hot water for denying me service. I personally carry a copy of my certificate in my wallet and will show it when requested just to get on with my day, but not everyone feels this way. We'll likely see a proliferation of court cases well before the Biden-OSHA mandate goes into effect, if it ever does.

So if President Biden wanted to make a big show of Doing Something about COVID while making the whole effort meaningless and unenforceable, he could hardly do a better job than he has. Strategic incompetence?