Rulemaking is final, but authority to require a vaccine still unclear


In June, Washington Gov. Jay Inslee dictated that there would be a permanent COVID-19 vaccine mandate in our fair land that extended beyond the reach of his emergency powers. When the Legislature convenes in the new year, our other elected representatives need to try and swim the moat to take that unfair requirement away. I was told it might be possible with a budget proviso.

For now, rules have been written — effective Nov. 4 — and a COVID-19 vaccine is now required for taxpayer-funded employment in state executive and small cabinet agencies. 

A lot of agencies are impacted, including the Washington State Patrol and the Department of Transportation. Both were hit hard by vaccine-related employee loss under emergency orders: Ferries are still docked with labor pains that were exacerbated by the misguided mandate, and it's clear that government service levels have suffered along with more than 2,000 people who lost their work with the state.

The COVID-19 vaccine mandated for current employees also applies to future job applicants. That feels like discrimination to me.

Allowing our governor to treat unvaccinated people like waifs is unacceptable. A vaccine requirement, especially given where the disease is at and all we know about COVID-19 spread and contraction, is outdated. 

The flu has taken off, by the way. A Tuesday press release from the Department of Health informs that flu cases are rising quickly in Washington state and nationwide, with hospitalizations at the highest rates seen in 10 years for this point of the year. DOH urges precautionary measures.

While COVID-19 is not the flu, some doctors and government leaders have been saying that we’ve reached the point where COVID-19 poses a similar or less of a risk of hospitalization or death for individuals than influenza. Debate around how COVID-19 deaths are counted swirls and continues to make that determination hard to see. In this National Public Radio story, Dr. Jake Scott, an infectious disease specialist at Stanford University rightly says, "I think it's really important people have an accurate sense of the reality in order to go about their lives." He added that it's problematic if people's risk assessment is being driven by or influenced by overestimated hospitalization and death rates.

Reminder: There is no flu vaccine requirement for state workers. And Washington stands out for the strict COVID-19 measure that remains. 

A booster requirement for state employees — also dictated in Gov. Jay Inslee’s June directive — was negotiated away in August. Now employees who get a booster or who are up to date with boosters in the new year will reap a $1,000 booster bonus from taxpayers. That idea has been met with wide skepticism. Read more about how only 27% of respondents to a poll sponsored by media and academia approved of the booster incentive. It should be noted that about 22% thought the state should require the booster without an incentive and 35% disapproved of a bonus and requirement. Read more about the poll and how the booster bribe is bombing here and here

The Office of Financial Management (OFM) was the agency directed to create rules for the permanent mandate. For months, I have been asking the department for clarification about the authority that exists for the governor or OFM to make a requirement about a worker’s medical decision. OFM has sent me an explanatory statement a couple of times that says it has rulemaking authority in the following statutes: RCW 41.06.133 and RCW 41.06.150.  

I read these and failed to see the authority, so I followed up with more questions. A spokeswoman said these statutes give OFM rulemaking authority “over the basis and procedures to be followed for reduction, dismissal, suspension, or demotion of employees, as well as appointments." So now I’ve asked if I am right to assume the governor and OFM could make rules about how many times an employee works out each week and what he eats or drinks, etc. OFM asked me to hold while it works on answers.

I’ve also asked OFM if the Legislature could limit the authority it sees in those RCWs or what else the representative body could do to override the requirement. Hold, please.

I’m holding. But I think we should be anxious to solve this question, especially with court cases aimed at governments over vaccine mandates. The governor’s continued resolve to pin better COVID-19 outcomes on one group of people could become a costly problem. The New York Supreme Court recently ordered New York City to rehire and give back pay to city employees. 

It’s time for peace in the land when it comes to vaccines.

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