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Constitutional law professor says vaccine warrants historically upheld in court

EAU CLAIRE, Wisconsin (WEAU) – With the drive to get more Americans vaccinated against COVID-19, vaccination warrants have emerged across the country.

According to Dr. Eric Kasper, director of the Menards Center for Constitutional Studies at UW-Eau Claire, most employers, businesses and even some levels of government have the ability to issue their own vaccination warrants.

In the Chippewa Valley, medical facilities including the Mayo Clinic, Marshfield Medical Center and Prevea Health are requiring employees to get vaccinated.

“If a private employer were to impose a vaccine as a rule, they would be able to do so, but there are certain exemptions required by federal law, two of the most notable would be with regard to religious beliefs and medical conditions,” said Dr. Kasper, director of the Menards Center for Constitutional Studies at UW-Eau Claire.

Wisconsin recognizes unlimited employment, which means it might be possible for someone to be fired for refusing to be vaccinated if they cannot prove a religious or medical exemption.

“Private employers can fire someone for any reason or for no reason at all as long as they don’t fire someone for being a member of a protected class, for example if someone has been fired because of race or age, that wouldn’t be legal, ”explained Dr Kasper. “Just being unvaccinated is not what we would call by law to be in a protected class.”

Some levels of local government even have the option of issuing their own vaccination warrants, as recently seen in New York, where a mandate requires vaccination to enter gyms and some restaurants.

“What this is based on is that local and state governments have general policing power to protect public health, this is interpreted very broadly,” said Dr Kasper. In a 1905 United States Supreme Court case, Jacobson vs. Massachusetts, the High Court upheld a local mandate that people be vaccinated against smallpox.

However, Dr Kasper says the federal government does not have that same authority.

“It would be more constitutional if the federal government created things like taxing incentives to get vaccinated, the same way the Affordable Care Act did to make someone seek health insurance coverage,” he said. he declared.

Dr Kasper says he expects vaccination warrants to be challenged in court. Dr Kasper says that as long as vaccination warrants offer exemptions for medical and religious reasons, a trial is unlikely to succeed.

“We have a lot of constitutional and statutory case law that points the way for these types of warrants to be upheld in court. “

Recently the Supreme Court of the United States rrefused a request to block Indiana University’s requirement for students to be vaccinated against COVID-19.

Because the COVID-19 vaccine is so political, Dr Kasper says he expects some companies to offer incentives for employees to get vaccinated rather than requiring the vaccine. He says employers can choose to impose other rules on unvaccinated workers, such as requiring masks or remote working.

If the FDA fully approves COVID-19 vaccines currently approved for emergency use, Dr Kasper says it would not impact the constitutionality of a vaccine warrant, but it would be an advantage if it had to be challenged in research.

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