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Horowitz: Dept. of Commerce demands proof of vaccination in order for employees to breathe freely

Op-ed
Photo by Alexi Rosenfeld/Getty Images

Sure, the government won't mandate vaccine passports. They'll just make you prove that you were vaccinated in order to function normally in society. For those who thought they won the battle against coerced vaccination, it's time to realize that it's not just the "private" sector violating federal law by ostensibly mandating an experimental gene agent, the government itself is now doing it, too.

Last Tuesday, the Department of Commerce sent out an email to all employees updating its workplace COVID-19 safety guidance. The email obtained by Blaze Media stated that "fully vaccinated federal employees, onsite contractors, and visitors are no longer required to wear face masks or practice physical distancing while in Department of Commerce (DOC) facilities." However, they warn that "fully vaccinated individuals who wish to remove their face masks and not maintain physical distancing may be required to furnish documentation confirming their vaccination status to their supervisor(s) or others charged with ensuring safety compliance upon request. Appropriate documentation of vaccination status includes an original, a copy, or a photograph of a vaccination document."

In a FAQ memo sent to employees of the National Oceanic and Atmospheric Administration (NOAA and a DOC agency) on Friday, the agency reiterated that supervisors may ask for proof of vaccination in order not to wear masks or social distance and also encouraged them to report people who refuse to do so.

NOAA COVID-19 Vaccine FAQs.pdf

Thus, with the flick of a pen the government has violated the Emergency Use Authorization (EUA) statute for its own workforce by requiring people to be vaccinated. To say that having to wear a mask indefinitely for eight hours a day is not coercion is nothing short of lunacy. The statute is crystal clear. The same section of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3, that authorizes the FDA to even grant Emergency Use Authorization status in the first place also requires the secretary of Health and Human Services to "ensure that individuals to whom the product is administered are informed … of the option to accept or refuse administration of the product."

Perforce, not only must the vaccine remain optional, the government itself must ensure that people know it is indeed optional. Instead, they are doing the opposite by stating that people will either be separated, masked, or discriminated against for not getting the vaccine, regardless of their risk status or if they had the infection already, which has proven to convey greater immunity than the vaccine.

The cruel irony of the vaccine mandate is that the CEOs of Pfizer and Moderna just said that the first people who were vaccinated in December and January will need a "booster" shot in September. So, is this going to become mandatory as well? The vaccine is so effective…that it requires constant reinforcement, something we don't see of natural infection even 17 years after SARS 1.

In an email guidance obtained by TheBlaze, the National Weather Service Employees Organization, the union for NWS employees, explicitly state, "This guidance on not wearing masks only applies to those who have been fully vaccinated. It does not apply to those who have caught COVID and have some level of natural immunity but chose not to get vaccinated." [emphasis in original]

So much for an agency of scientists following the science!



The policy of the Department of Commerce stands at odds with the policy of the Department of Justice (DOJ), which likely better understands how to read a statute. Earlier this month, DOJ sent out a memo stating that "Supervisors and managers should not ask about an employee's vaccination status or use information about an employee's vaccination status to make decisions about how and when employees will report to a workplace instead of teleworking."

The twisted irony of the DOC policy, which is being adopted by many public and private actors, is that they are leveraging a mandate of an experimental device with the force of a mask mandate, which in itself, must remain optional because it was approved by the FDA last year under an Emergency Use Authorization. As I warned, once we acceded to mask mandates without strong legal and political counteractions, we paved the road for the ruling class to violate the EUA conditions for vaccination as well.

Health privacy, respect for disabilities, and equal treatment used to be sacrilege for liberals. Title III of the ADA, which states, "Public accommodations must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment," has been used zealously against businesses who ever tried to discriminate based on health states.

In this case, with everyone who wants to be vaccinated having had that protection for months, it is irrational to force it upon those who don't want it. In a 1990 AIDS discrimination case, a district court ruled [740 f supp 95 (D.P.R 1990)] that denial of a special permit to an AIDS Center based on "irrational unfounded fears" was improper.

As it stands today, there is no evidence masks work, there is no evidence vaccinated people are in danger from those not vaccinated (and if so, are somehow protected by masks), and that vaccines convey a greater degree of immunity than natural infection. Nor is there any rational legal basis for continuing to treat healthy people at this stage as if they have the virus for the rest of their lives.

Title III of the Civil Rights Act [ 28 CFR § 36.208] states clearly that "In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain." These factors include, "the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk."

Forcing every human being to either inject an experimental gene therapy in their body or wear a mask all day – regardless of their symptoms, whether they had the virus, and for how long – is absolutely unreasonable. It treats breathing as a privilege, not as a right. Moreover, the potential for injury at the hands of an unvaccinated person, by their own measure of the efficacy of the vaccines for those who got the shots, is zero.

Then again, we were never a nation of laws. We were always a nation of political will to enforce the laws we believed in. The question is if we still have any political will to stand for the most basic human rights.

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