Tuesday, February 23, 2021

A Disguised Vaccination Mandate: Submit to Vaccination or Forego the Workers’ Compensation Causation Presumption

A workers’ compensation bill filed in the Illinois House on February 19 provides, “no compensation shall be awarded to a claimant for death or disability arising out of an exposure to COVID-19 if the employee has refused a vaccination.” 820 ILCS 305/7.5 new

This is a very sticky wicket. If the State may compel an individual to receive a vaccine, despite 4th amendment considerations, then perhaps the provision is no big deal (even though it leaves a bad taste in my mouth). But if the State cannot compel receipt of the vaccine then I am at a loss to say how the provision does not amount to a prohibited conditioned benefit—a benefit conditioned on foregoing a constitutional right. See Perry v. Sinderman, 408 U.S. 593, 597 (1972); Sherbert v. Verner, 374 U.S. 398, 404 (1963).

Indeed I think workers’ compensation benefits implicate this principle even more strongly than the cases I just cited, which essentially stood for the principle that, even if creation of a right by Government (such as, say, a welfare benefit) is completely discretionary, the benefit may not be freighted with unconstitutional conditions: “you get this benefit only if you agree never to belong to any faith other than Christianity.” But in the case of workers’ compensation, the quid pro quo for a tort right, I resist the notion that the “benefit” received is completely discretionary. It is not a welfare benefit, it is a substitute for a historically conferred tort remedy of ancient lineage. So the state can take that benefit from me unless I assent to an unconstitutional invasion of my body?

As I say, if a mandatory vaccination is not an unconstitutional invasion of my body then my concern fades into the mist. In any event, it is a very unsavory way for the State to sneak into the law a vaccination mandate. If it is to be done, do it in the open.

Michael C. Duff     


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