Legislature must add anti-discrimination provisions to Special Session bills

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OPINION

BY JENNIFER CABRERA

The Florida Legislature is meeting next week in a Special Session to consider several bills to “protect workers against COVID-19 vaccine mandates and address employer policies that force COVID-19 vaccination” (read the proclamation here). Specifically, the proclamation calls on the legislature to “Protect current and prospective employees against unfair discrimination on the basis of COVID-19 vaccination status and ensure robust enforcement for this protection.”

However, the bills that are currently filed for the Special Session do not accomplish this goal of protecting employees against discrimination on the basis of COVID-19 vaccination status. HB 1B and SB 2-B require employers to accept several types of exemptions, including medical reasons, religious reasons, immunity from a previous COVID-19 infection, periodic testing, or the use of employer-provided personal protective equipment. Under these bills, if an employee can find a medical professional to sign a medical exemption or the employee is able or willing to satisfy the requirements for the other types of exemptions, that employee would be protected from being fired.

But the employee is not protected from discrimination. Cox Communications in Gainesville, for example, prohibits unvaccinated employees from accessing parts of their office building, and they have placed restrooms outdoors that unvaccinated employees are required to use. There is no escaping the parallels between this and a previous shameful era in American history.

The federal government, some state and local governments, and many private businesses claim that these mandates are necessary to protect workers from unvaccinated employees who may be infected, but this claim is not supported by the most recent studies on transmission and natural immunity.

Vaccinated people can transmit COVID-19

First, vaccinated people can be infected and can spread COVID-19: CDC Director Rochelle Walensky said on CNN on August 6, “what [vaccines] can’t do anymore is prevent transmission.” And now we have studies showing that vaccinated and unvaccinated people spread at similar rates.

Recent preprints from Acharya and Riemersma found that “even asymptomatic, fully vaccinated people might shed infectious SARS-CoV-2” and “no significant difference in cycle threshold values between vaccinated and unvaccinated, asymptomatic and symptomatic groups infected with SARS-CoV-2 Delta.”

A peer-reviewed study in the Lancet on October 29, 2021, found that “fully vaccinated individuals with breakthrough infections have peak viral load similar to unvaccinated cases and can efficiently transmit infection in household settings, including to fully vaccinated contacts.”

Natural immunity is durable

Second, many, although not all, unvaccinated people have recovered from COVID-19 and have durable immunity to reinfection. Brownstone Institute has accumulated 122 studies (and counting) showing that the immunity gained from prior infection with COVID-19 is effective and durable. As Dr. Paul Alexander says in the introduction to the article, “natural immunity confers protection against a respiratory virus’s outer coat proteins, and not just one, e.g. the SARS-CoV-2 spike glycoprotein.” In other words, the body’s immune system mounts an immune response after infection to all the parts of the virus, not just the spike protein, the only part of the virus that the vaccine primes the body to recognize. The broad response of natural immunity makes it more likely that the body will recognize the virus even if it mutates, while the vaccine is still based on the spike protein from the original strain of COVID-19.

The primary benefit of the vaccines is to provide protection against severe outcomes in the individual, but they have not succeeded in reducing overall cases or hospitalizations: WCAX reported on November 4, 2021, that highly-vaccinated Vermont “reached another grim pandemic milestone, hitting the highest daily case count recorded so far. It comes as hospitalizations and deaths are also the highest they’ve been.” According to Beckers Hospital Review, “Vermont has the highest percentage of its population fully vaccinated against COVID-19” in the United States. Vaccines may have a private benefit to the individual, but we are not seeing a societal benefit.

It is an unfortunate fact that businesses are under various mandates from OSHA, CMS, and President Biden’s executive order on federal contractors, and many legislators are reluctant to interfere with private businesses, but the goals in the Special Session proclamation can be achieved without requiring businesses to risk the penalties associated with those mandates. 

The legislature must craft and pass bills that require employers to accept a broad array of exemptions and also prohibit employers from discriminating against unvaccinated people in any way. If an employer feels that it’s necessary to make unvaccinated employees wear masks or test regularly, for example, those measures should be equally applied to all employees. Since vaccinated people can spread COVID-19, there is no justification for applying these measures only to the unvaccinated. 

Not only is the discrimination inherently unjust and antithetical to the American ideal of equal treatment, the petty, cruel discriminations against unvaccinated employees are designed to coerce employees to get vaccinated. Employers use colored badges to mark the employees as “unclean.” Vaccinated employees don’t have to quarantine if they’re exposed to COVID-19, but unvaccinated employees have to quarantine and also use their personal leave or go without pay. Cox Communications is probably not unique in prohibiting unvaccinated employees from accessing parts of their office building. We have received reports that in some hospitals in Florida, unvaccinated employees are forced to eat outdoors. The indignities are myriad, limited only by the imagination of those in charge and the caution of their legal counsel. 

Adding an anti-discrimination provision to the proposed bills—along with an enforcement mechanism—forces businesses to respond to the most up-to-date science showing that vaccinated people “can efficiently transmit” COVID-19 instead of simply claiming to be “safe” because they mandate vaccination. It’s impossible to see these outdoor restrooms without thinking of the Jim Crow laws that prohibited whites and blacks from using the same water fountains, restrooms, and other public accommodations. This type of segregation, based on unfounded beliefs that other people are “unclean,” should never be explicitly permitted by law, and the Florida legislature should make sure during the upcoming Special Session that this will not be tolerated in Florida by following the direction given by the governor: “Protect current and prospective employees against unfair discrimination on the basis of COVID-19 vaccination status and ensure robust enforcement for this protection.”