The Perils of Compelling Vaccination

This may be the most important article I ever write for the dealership community, so please pay attention.

This article constitutes neither legal advice nor medical advice. Rather, it is practical advice that implicates both those disciplines. 

As I write this, Joe Biden announced his intention to require all federal employees, and those who work for private companies with more than 100 employees, to receive a vaccine against COVID-19. To my knowledge, the federal government does not operate retail automobile dealerships, so this article will focus on the potential impact on dealerships that employ 100 or more people.

According to NADA data, the average new car dealership employs approximately 70 people, but large single points, and most multi-location operations, employ far more, so this mandate will have significant impact on our industry.

As a preliminary matter, let me be clear that I am not here to opine whether COVID vaccines are a good idea or a bad idea. There are very serious disagreements on this issue, and I’m not going to resolve those differences here. Rather, I want to focus on the potential legal liabilities for dealers that do, or don’t, require vaccines for their employees. This is a very serious, and very significant, question. You should not decide one way or the other without careful consideration and discussion with your local counsel. 

A year and a half ago, just before COVID came to our attention, I published an article in Auto Dealer Today, “One Flu Over the Dealership.” Despite the passage of time, it has aged well, and I believe the prudential advice in that piece concerning the wisdom of requiring vaccinations is still worth considering.

One thing that has changed in the time that passed since the article was published is that there were no vaccines and now there are. Many American adults have been vaccinated, but a substantial number have not. 

So a new consideration to discuss is the risk that those forced to chose between the jab or their job may call the compelling dealer’s bluff. A September Washington Post/ABC News poll indicated a “whopping 70% of unvaccinated Americans would quit their jobs if vaccines were mandated.” In today’s job market, what company wants to face replacing a substantial portion of its workforce simultaneously?

Another thing that’s changed is the status of at least one of the available vaccines. When they first came out, COVID vaccines were approved under an Emergency Use Authorization, meaning they were, by definition, experimental. One cannot be forced to take an experimental drug — that’s a violation of international law and is literally listed as a crime against humanity. As a rule, employers should not commit crimes against humanity.

The August FDA approval of at least one COVID vaccine — Pfizer-BioNTech — changed all that. Or did it? Questions persist concerning the process by which approval was granted. Those questions were not assuaged when, just two weeks later, the CDC quietly changed its very definition of “vaccination” and “vaccine.”

Per the CDC, “vaccination” used to mean, “the act of introducing a vaccine into the body to produce immunity to a specific disease.” In early September the CDC changed the word “immunity” to “protection.”

The CDC’s definition of “vaccine” changed from “a product that stimulates a person’s immune system to produce immunity to a specific disease” to “a preparation that is used to stimulate the body’s immune response against diseases.”

Suffice it to say, the facts have not shaken out yet and, until they do, the liability picture is equally unclear.

With all of this as backdrop, we have the new executive mandate — this increases the pressure on employers, and the risk.

Here’s where I see the risk: When the federal government tells you to do something “or else,” we call those dictates “laws.” Under our Constitution, laws originate in Congress as bills. If a bill passes both houses of Congress and is then signed by the President, it becomes a law. Implementing regulations can then be drafted and promulgated by the Executive Branch.

Now here’s the important part: If a President just commands that you do something, that is not a law. Presidents are not kings. I believe that a presidential command, absent a law authorizing it, is not binding. Relying on such a mandate to order your employees to get vaccinated or get fired puts employers on very shaky ground.

How shaky? On Friday, September 23, a federal circuit court judge granted a temporary injunction in favor of the New York City teachers union blocking NYC Mayor DeBlasio’s mandate that teachers be vaccinated or be fired (this brings in labor law and the terms of a collective bargaining agreement). On Monday, September 26, a three-judge panel of the 2^nd U.S. Circuit Court of Appeals reversed that temporary injunction. As of press time, that case is on its way to the U.S. Supreme Court. This situation is the very definition of “unsettled,” and highlights employers’ need for caution. To do otherwise could be to incur liability for bad outcomes when a vaccine goes bad.

Let me give you an example. As I write this, a dear friend and former colleague is in the ICU at Tampa General Hospital with two brain bleeds. He recently got a COVID vaccine. After spending the first night with him at the hospital I researched “COVID vaccine and brain bleed.” To my horror, I discovered 81 studies linking brain bleeds, always serious and sometimes fatal, to COVID vaccines. The literature indicates that side effect mostly affects women, and mostly manifests within two weeks of the second shot. 

My friend is male and got vaccinated more than months ago, so the vaccine probably wasn’t the cause of his injury. But could you imagine if you as an employer required an employee to get vaccinated and a week later that employee suffered a brain bleed or other serious side effect? Who would get sued? Not the government — it has sovereign immunity. And not the pharmaceutical companies — they’ve been granted sweeping immunity with respect to COVID vaccines. But does your dealership have immunity? Not that I’m aware of, and relying on a presidential decree that doesn’t have an actual law behind it is a risky position to be in.

Remember, I am not advocating for or against vaccines here. I’m just sounding an alarm with respect to mandating them at your company. My bottom line suggestion is this: before you require vaccination at your workplace, consult with your local counsel and — here’s another important part — get a written opinion letter endorsing the action you take. 

Why an opinion letter? Legal opinions are like insurance policies. When a law firm issues a formal opinion letter and you rely upon it, the law firm can be liable for their bad advice if it turns out to be wrong. It can give you access to the firm’s malpractice coverage. For this reason, legal opinion letters can be expensive. But not nearly as expensive as paying for a settlement if an employee you coerced into being vaccinated has a seriously bad outcome because of it.

Bottom line: In the situation we’re talking about here, everyone is protected… except the dealer. Seek competent legal counsel before you choose your course of action. And strongly consider paying the price for an opinion letter before moving forward. It could be the best money you ever spend.