Hot Topics in Business Law

Aug 12, 2021 |

Article 1: “VA Requires COVID-19 Vaccination for Health Care Workers”

According to the article, the Department of Veterans Affairs recently became the first major federal agency to require health care workers to get COVID-19 vaccines, as the aggressive delta variant spreads across the nation and some communities report troubling increases in hospitalizations among unvaccinated people.

The VA’s move came on a day when nearly 60 leading medical and health care organizations issued a call for health care facilities to require their workers to get vaccinated. No federal law stands in the way of employers requiring vaccinations, but like mask mandates, the issue has been politicized in a society that’s divided on matters of public health.

“With more than 300 million doses administered in the United States and nearly 4 billion doses administered worldwide, we know the vaccines are safe and highly effective at preventing severe illness and death from COVID-19,” Dr. Susan Bailey, immediate past president of the American Medical Association, said in a statement. “Increased vaccinations among health care personnel will not only reduce the spread of COVID-19 but also reduce the harmful toll this virus is taking within the health care workforce and those we are striving to serve.”

Although vaccination among physicians is nearly universal — 96% according to an AMA survey — that’s not the case for many other people working at health care facilities. In nursing homes, only about 60% of staffers are vaccinated, compared with about 80% of residents, according to recent numbers from Medicare. And COVID-19 cases are rising.

At the VA, vaccines will now be mandatory for certain medical personnel — including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants and others who work in departmental facilities or provide direct care to veterans, said VA Secretary Veterans Affairs Secretary Denis McDonough.

Employees will have eight weeks to be fully vaccinated.

“It’s the best way to keep veterans safe, especially as the delta variant spreads across the country,” McDonough said in a statement. “Whenever a veteran or VA employee sets foot in a VA facility, they deserve to know that we have done everything in our power to protect them from COVID-19.

“With this mandate, we can once again make — and keep — that fundamental promise,” he added.

It was unclear what would happen to VA employees who refuse to be vaccinated. The agency said vaccination will be required “absent a medical or religious exemption.” The longstanding policy in the health care industry is for staff to stay up to date with vaccinations, such as annual flu shots. Exceptions for medical reasons include known allergies.

In addition to the AMA, the medical and health care groups calling for mandatory vaccines for health workers included the American Academy of Nursing, the American Public Health Association, the American Pharmacists Association and, for the first time, a nursing home industry group. LeadingAge, which represents nonprofit nursing homes and elder care facilities, had previously advocated educating nursing home employees about the benefits of getting their shots. Also joining the call was the National Medical Association, the leading professional group representing Black physicians.

“Unfortunately, many health care and long-term care personnel remain unvaccinated,” the groups said in a statement. “We stand with the growing number of experts and institutions that support the requirement for universal vaccination of health workers.”

Earlier this year, the U.S. Equal Employment Opportunity Commission said current federal laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated against COVID-19.

The Centers for Disease Control and Prevention has heavily promoted vaccinations as a way to slow the pandemic and save lives. However, the agency has not recommended that state or local officials, or employers, mandate vaccinations for their employees.

“The politics is really tricky because President Biden hasn’t ordered mandatory vaccinations for federal workers,” said Lawrence Gostin, a public health law expert at Georgetown University. “And it would seem hypocritical if CDC made that recommendation” to businesses or state and local officials, he said.

A CDC spokeswoman would not comment.

To make matters more complicated, the COVID-19 vaccines have yet to win full approval from the Food and Drug Administration. They continue to be provided under emergency use authorization and the lack of a full approval has fed into hesitancy among some people.
Still, the FDA’s emergency approval process was thorough and didn’t skip the extensive testing required of any vaccine. Of the three manufacturers of vaccines approved in the U.S., Pfizer and Moderna have applied for full approval, and a Pfizer decision is expected soon.

The COVID-19 vaccines were not brewed overnight, either. They were the fruit of more than 10 years of behind-the-scenes research and huge injections of funding that laid the groundwork for them to be rolled out so quickly.

Katie Smith Sloan, CEO of LeadingAge, said it’s time to go beyond the power of persuasion. “As COVID-19 variants emerge and proliferate, we can start saving more lives today by ensuring staff are fully vaccinated,” she said.

Discussion Questions

1. Are you surprised that a sizable percentage of health care workers in the United States remain unvaccinated for COVID-19? Why or why not?

As the article indicates, in nursing homes, only about 60% of staffers are vaccinated compared with about 80% of residents, according to recent numbers from Medicare.

The answer to this question is subjective, and student responses may vary. In your author’s opinion, the statistics indicated in the article regarding vaccination of nursing home health care workers compared to residents is shocking. Health care workers have many responsibilities, one of which includes serving by example. In the nursing home context, it appears that those who are being cared for are the ones serving by example, rather than their caregivers.

In your author’s estimation, the fact that a sizable percentage of health care workers in the United States remain unvaccinated for COVID-19 attests to the fact that the vaccination has unfortunately become a highly politicized issue.

2. As the article indicates, no federal law stands in the way of employers requiring vaccinations. In your reasoned opinion, should there be? Why or why not?

This is an opinion question, so student responses may vary. In your author’s estimation, federal law should either encourage or mandate vaccinations that either guard against or remedy pandemics, given the fact that doing so addresses either a potential or an actual national (and in the case of COVID-19, global) emergency. In the United States, we are indeed a nation of rights, but with rights come great responsibility, particularly regarding matters of national security. National security is not exclusively related to military defense.

3. Are you surprised that COVID-19 vaccination became such a highly politicized issue? Why or why not?

This is an opinion question, so student responses may vary. In your author’s opinion, given the approximately 30-year “track record” of extreme political polarization in the United States, this is not surprising. In your author’s opinion, extreme political polarization in the United States is substantially interfering with our collective sense of unity and is perhaps the greatest threat to United States sovereignty. In other words, extreme political polarization is an existential threat to the United States.

Article 2: “New ‘Medical Freedom’ Law Outlaws Requiring COVID-19 Vaccine to Access Public Spaces”

According to the article, New Hampshire residents cannot be required to get a COVID-19 vaccine in order to “access any public facility, any public benefit, or any public service” according to a new bill signed into law by Republican Governor Chris Sununu.

The so-called “medical freedom” bill does not override state vaccine law, which “requires that all children enrolled in any school, pre-school, or child care have certain immunizations to protect them and those around them from vaccine preventable diseases,” according to the New Hampshire Department of Health and Human Services.

The COVID-19 vaccine is not currently listed as a requirement for attending school, nor is it approved for children younger than 12.

Other exceptions to the new law include correctional facilities, such as jails and prisons, where immunizations can be mandated “when a direct threat exists,” as well as county nursing homes and medical facilities operated by the state.

“As he has long said, Governor Sununu believes that private entities have the choice to require vaccinations,” Brandon Pratt, the governor’s deputy communications director, told the media in a statement. “The simple fact remains that the safest thing one can do is get vaccinated as soon as possible to help increase the state’s already high vaccination rate.”

New Hampshire’s law stands in contrast to some other parts of the Northeast, which have edged toward mandatory vaccinations in recent days.

In New York City, Mayor Bill de Blasio announced recently that COVID-19 vaccination would be compulsory for all city workers, including police officers, firefighters and teachers, starting September 13. City workers will have the option of getting tested weekly for COVID-19 if they choose not to get vaccinated.

“We’re doing this out of a sense of urgency,” de Blasio said. “It is about protecting the workforce, their health and safety, and the people they serve.”

Discussion Questions

1. The New Hampshire “medical freedom” bill referenced in the article focuses on the right of the unvaccinated to “access any public facility, any public benefit, or any public service.” What about the freedom of others to remain healthy?

This is an opinion question, so student responses may vary. In terms of rights in the United States (or in any other country, for that matter), one must be mindful of the rights of everyone, not just those who are most “vocal” in asserting their rights. For example, in terms of the Second Amendment “right” of those who possess arms and assert their right to “open carry” those arms in bars, restaurants, retail stores, etc., what about the rights of those who do not carry arms to feel safe while they are in public? In your author’s opinion, the New Hampshire law as written focuses exclusively on the rights of the unvaccinated, and entirely disregards the rights of those who have fulfilled what they perceive to be their civic duty by becoming vaccinated.

2. As indicated in the article, the COVID-19 vaccine is not currently listed as a requirement for attending school, nor is it approved for children younger than 12. Should it be? Explain your response.

This is an opinion question, so student responses may vary. Your author is old enough to remember when there was no substantial debate regarding the smallpox vaccination, the polio vaccination, etc. and the requirement that children become vaccinated before attending school. As referenced previously in this newsletter, doing so was perceived as a civic duty; in other words, becoming vaccinated was not just about self-preservation, it was about societal and national preservation. It saddens your author that the United States has strayed so far from its collective sense of unity and shared purpose.

3. As indicated in the article, New York City Mayor Bill de Blasio announced recently that COVID-19 vaccination would be compulsory for all city workers, including police officers, firefighters and teachers, starting September 13. Comment on this regulatory mandate. Do you approve or disapprove of the mandate?

This is an opinion question, so student responses may vary. Your author supports this mandate, not just from the standpoint of making these New York City employers safe, but also in terms of them serving by example and making those they come in contact with safer.

As far as the legality of this regulatory mandate, employment law is clear. Unless such a mandate is prohibited by an existing contract (for example, a labor-management collective bargaining agreement), an employer can require such a vaccination as a condition of employment, either as a precondition of employment or as a condition of continued employment.

Article 3: “Justice Department Opposition Kills Major Insurance Merger”

According to the article, a proposed $30 billion insurance industry merger is off, one month after the Justice Department’s antitrust regulators sued to block it. It is another sign of the tough stance the Biden administration is taking against corporate deal-making.

The deal between Aon, which is incorporated in England and Wales, and Ireland-based Willis Towers Watson, was announced in March 2020. Both have major operations in the United States and around the rest of the globe and thus needed the approval of U.S. antitrust regulators.

The deal, valued at $30 billion at that time of its announcement, would have combined two of the insurance industry’s largest brokers.

Although European antitrust regulators and some other regulators approved the deals, the US Justice Department sued in June to block the deal. Attorney General Merrick Garland said last month the Justice Department was committed to preserving competition and stopping harmful consolidation.

The two companies issued a joint statement that said they are convinced their businesses were different enough to not cause any harm from reduced competition, but that it did not make sense to move forward with the deal in the face of the Justice Department opposition.

“The DOJ position overlooks that our complementary businesses operate across broad, competitive areas of the economy,” said Aon CEO Greg Case. “We are confident that the combination would have accelerated our shared ability to innovate on behalf of clients, but the inability to secure an expedited resolution of the litigation brought us to this point.”

The two companies are not well known to most Americans, despite their size.

Aon has $11 billion in annual revenue and 50,000 employees globally. Willis Towers Watson has $9 billion in revenue and 46,000 employees, and is probably best known by the general public for having its name on the Chicago skyscraper (formerly known as Sears Tower) that was once the world’s tallest building, even though it sold the building to Blackstone Group in 2015.

Still, the fact that the Biden administration is taking a much more aggressive stance when it comes to antitrust cases is a significant change from the policy of previous administrations, both Democrat and Republican.

And this is not the first major deal killed due to opposition from the Biden administration. Earlier this month Warren Buffett’s Berkshire Hathaway pulled the plug on a deal to buy a big natural gas pipeline for more than $1.7 billion because of antitrust concerns.

The Federal Trade Commission has changed some of its rules recently that could make it easier to go after tech companies like Amazon that may offer attractive prices to customers, but have also been accused of harming small businesses, workers and innovation. It previously operated under rules that would prioritize “consumer welfare” in its enforcement decisions.

President Joe Biden also signed an executive order earlier this month with 72 specific actions designed to increase competition and reduce market concentration from deals that were approved in years past, such as looking into the allocation of airport gates to promote competition in an airline industry in which four carriers formed by mergers now control more than 80% of US air travel.

“Competition keeps the economy moving and keeps it growing. Fair competition is why capitalism has been the world’s greatest force for prosperity and growth,” Biden said at the ceremony at which he signed the executive order. “But what we’ve seen over the past few decades is less competition and more concentration that holds our economy back. We see it in big agriculture, in big tech, in big pharma. The list goes on. Rather than competing for consumers, they are consuming their competitors.”

Discussion Questions

1. As indicated in the article, Aon is incorporated in England and Wales, while Willis Towers Watson is based in Ireland. Why are these two companies subject to United States law regarding mergers?

As indicated in the article, even though they are incorporated in countries other than the United States, both Aon and Willis Towers Watson have substantial business operations in the U.S. As a result, the companies are subject to U.S. antitrust regulators and U.S. law. As the old saying goes, “when in Rome, do as the Romans do!”

2. What is the rationale of the United States government (and U.S. law) for preventing a merger?

The rationale of the United States government and U.S. law for preventing a merger is quite clear. Generally, mergers limit competition, and with limited competition comes less consumer choice, higher consumer prices, and perhaps lower quality goods and services. U.S. antitrust law seeks to preserve competition, with the firm belief that a competitive economy benefits the consumer. U.S. antitrust law is pro-consumer regulation.

3. As the article indicates the Biden administration is taking a much more aggressive regulatory stance when it comes to antitrust cases. Why do administrations differ so greatly in terms of regulating mergers and other corporate consolidations? Is not “the law” the law?

As your author informs his first-semester Business Law students, law consists of “enforceable standards that govern conduct.” There are essentially two important parts to that definition. First, the law consists of standards. Second, those standards are enforceable against violators. Although the law is arguably “not worth the paper it is printed on” unless it is enforced, administrations do differ in terms of the existence and extent of enforcement. Historically, Republican administrations have taken more of a “laissez faire” approach to antitrust law enforcement, believing the business environment is better when government takes a deregulatory approach (the so-called “free market” approach), and that in terms of competition, “to the victor goes the spoils.” Democratic administrations, on the other hand, believe that although the free market should be vibrant, government also plays an important role in terms of ensuring that entrepreneurs have an opportunity to enter the market and succeed. In other words, although the free market should be the ordinary approach to a successful economy, there are situations where a business can become too successful and stifle competition as a result. The government must, as a result, play a vital role in either preserving or restoring competition in the marketplace.