As the delta variant of the COVID-19 virus rages on,, many business and educational institutions in the United States are requiring their employees and students, respectively, to get a COVID-19 vaccine. However, some individuals who resist reasonable efforts to thwart the continued spread of the virus may also be raising reasonably valid constitutional issues and concerns. 

In early August in Fairfax, Virginia, a George Mason University professor sued the university (his employer) for requiring him to receive the COVID-19 vaccine. The school had implemented a policy of mandatory vaccination for the upcoming semester for faculty and staff.

The law professor, Todd Zywicki , sued the school’s administration in a federal court, alleging that by threatening discipline against those who are unvaccinated, George Mason’s COVID-19 vaccination policy violates the constitutional rights of those who choose to be unvaccinated. George Mason threatened disciplinary action if faculty and other staff did not provide proof of vaccination by August 16. The threatened disciplinary action included termination of enrollment or employment for those who failed to comply with the school’s mandate.

Zywicki’s lawsuit alleges that the university’s fall 2021 reopening policy violates his right to bodily autonomy and his right to decline medical treatment under the Ninth and 14th amendments to the U.S. Constitution. Zywicki further alleges that the policy violates the Supremacy Clause of the Constitution, based on preemption by the U.S. Food and Drug Administration’s emergency use authorization for the COVID-19 vaccines. As a result, anyone to whom the vaccine is administered would be required to be informed of their option to accept or refuse it.

George Mason’s policy requires all unvaccinated faculty and staff members, including those who can demonstrate natural immunity from a prior COVID-19 infection, to physical distance, to wear masks while on campus, and to undergo frequent COVID-19 testing. Zywicki claims the policy is an unlawful mandate that interferes with his ability to perform his job as a law professor. Zywicki’s attorney, Jenin Younes, claims that the practical effect of the policy isher client cannot communicate with students as effectively, attend various events, hold regular office hours, or even meet students for a meal. 

Younes also argues that since Zywicki previously contracted and recovered from COVID-19, he now has natural immunity to the virus, which “is just as good if not better than that acquired through the most effective vaccines.” Zywicki’s immunologist, Dr. Hooman Noorchashm, has advised him that his immunity status and medical history make it medically unnecessary for him to be vaccinated.

“By pressuring and coercing the professor into receiving the vaccine against the advice of his doctor, with no government interest at all, GMU is violating Zywicki’s constitutional rights,” said Younes. On his behalf, Younes asked the court to issue an injunction protecting Zywicki “against wayward state actors engaged in unlawful conduct.”

Federal law allows employers to mandate COVID-19 vaccines for employees who have been infected with COVID-19 as well as those who have not been vaccinated. Although employers such as a university have the legal right to require employees to be vaccinated, George Mason University granted a medical exemption to Zywicki on Aug. 17.

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