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Legal expert weighs in on San Diego County's vaccine recommendation for businesses

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Posted at 12:36 PM, Aug 16, 2021
and last updated 2021-08-16 15:38:28-04

SAN DIEGO (KGTV) — San Diego County's recommendation for employers to require proof of vaccination or a weekly COVID-19 test may provide the nudge some businesses needed to require vaccines for workers, a legal expert told ABC 10News.

Attorney Dan Eaton said the validation creates strength and solidarity for employers who choose to issue vaccine requirements, but county leaders aren't courts and, therefore, the recommendation doesn't lend legal weight to those mandates.

Just as the FDA fully approving one or more versions of the vaccine wouldn't change the legal right of a company to mandate its workers getting vaccinated, measures like these might encourage more people to do it, but it doesn't change things from a legal perspective.

RELATED: San Diego County recommends all employers require COVID-19 vaccinations or regular testing

Eaton used the metaphor that up to this point, with regard to vaccine mandates or quasi-mandates as he calls some of them, there are vaccine cheerleaders and vaccine coaches. A cheerleader can encourage you to get the vaccine, which is what most officials and employers have been up to this point. But a coach can tell you to get the vaccine or put you on the bench, or even cut you from the team if you choose not to get the vaccine.

Mandates like these wouldn't even take into account the tens of thousands of people who aren't employed at all for so many different reasons.

Eaton added that people don't really like mandates, with mandates comes resistance, with resistance, comes litigation and with litigation comes delay. With a pandemic, the one thing you can't afford is delay.

So whether or not the state's or county's health departments could mandate vaccinations for everyone might not be a direction worth taking, even if it would ultimately hold up to legal challenges.

RELATED: Majority of surveyed San Diegans support employers' right to require COVID vaccine

"After this pandemic is eradicated, the one thing you could say for sure is the litigation will continue for some years, and only then, we have a final answer about the legal rights, the legal duties, and legal consequences that arise from this persistent pandemic," Eaton said.

According to a recent ABC 10News Survey USA poll, the majority of San Diegans say they support employers' ability to require vaccination and businesses can refuse service to unvaccinated customers.