Opinion: Las Vegas Raiders and SoulCycle are joining a long tradition



With the Delta variant sending case numbers soaring, vaccination rates are climbing too. But it’s not just a sense of self preservation fueling that rise. More than one in five US companies have started to require vaccination as a condition of employment for at least some employees, and more than half say they are likely to begin requiring it within a year.
Nor is the American business community only focused on employees. More and more companies are requiring vaccines from those who use their services, too: members at Equinox and SoulCycle, students at major universities, visitors to Broadway theaters or to Las Vegas Raiders’ football games.
These private mandates serve a vital function at a moment when government officials are hesitant to create public mandates. Officials have, in fact, been eager to offload this public health responsibility to corporations. Following FDA approval of the Pfizer vaccine, President Joe Biden urged businesses to mandate the vaccine. “I’m calling on more companies in the private sector to step up with vaccine requirements that will reach millions more people,” he said last month. “It only makes sense to require a vaccine to stop the spread of Covid-19.”

For all the sense that vaccine requirements make, it’s telling that private industry is far more likely to mandate the shots than the government itself. As much power as the federal government has accrued since the early 20th century, presidents have remained reluctant to flex that power too forcefully, often finding private industry to be a better instrument to achieve policy outcomes than the government itself.

On issues of public health, however, it has not always been corporations bailing out the federal government. The government got involved in large scale public health regulation in the early 20th century specifically at industry’s urging. For instance, the meat industry had been rocked by scandals in the late 19th century, its image further tarnished by the stomach-churning images of meatpacking that Upton Sinclair depicted in his 1906 novel “The Jungle.”
Because of these scandals and the public outcry that followed, meatpackers needed evidence from a neutral source indicating that their product was sound. As a result, many meatpackers lobbied for the passage of the Meat Inspection Act of 1906, which authorized the federal government to inspect meat to make sure it was fit for consumption, just as a number of legitimate food packagers and drug companies helped push for the Pure Food and Drug Act of 1906, which required accurate labeling and more standardized safety practices for food and drugs.

But no sooner had the government acquired this regulatory power than it sought private sector help in pursuing public policy goals. Presidents learned they could outsource government power to industry, using voluntary measures instead of more extensive government regulation.

In the midst of the Great Depression, as President Franklin D. Roosevelt sought to address the crisis, he balked at putting too many mandatory regulations on industry. Instead, the National Industrial Recovery Act (NIRA), passed in 1933, constructed a system that relied on both voluntary and industry-mandated (rather than government-mandated) standards around work hours, wages and prices. Companies that adhered to those standards could display a blue eagle in their windows and on advertisements — and the administration encouraged consumers to spend their money where they saw that symbol.
Roosevelt was right to be anxious that government mandates would be seen as overreaching. As it was, the conservative Supreme Court of the era struck down the NIRA in 1935 as unconstitutional.
A generation later, in the 1960s and 1970s, government officials revealed the dangers of tobacco, but hesitated to heavily regulate the cigarette industry. As early as 1964, Surgeon General Luther Terry warned of the linkage between cigarette smoking and lung cancer, and in the following years the government would mandate warning labels on cigarette packages and curb the ability of tobacco companies to advertise.
But smoking bans often came from industry itself. As historian Sarah Milov shows in “The Cigarette: A Political History,” in the 1970s airlines began creating nonsmoking sections to prevent government mandates about smoking aboard planes. Restaurants and theaters in that era began offering nonsmoking sections as a benefit to consumers who were asking for cleaner environments. By the 1980s, companies like Pacific Northwest Bell made it company policy to forbid smoking in its facilities, a mandate that primarily affected employees. These industry mandates furthered public health goals of lower smoking rates without outright government bans on tobacco.

The private industry vaccine mandates are doing the same kind of work: advancing the administration’s goal of near-universal vaccination without instituting a government vaccine mandate. While this may be a more circuitous way of reaching that public policy goal, it creates less friction. Right-wing agitation around the pandemic has polarized public health policy; by moving mandates a step away from the Biden administration and placing both employment and desirable public goods on the other side of vaccination, the private mandate saps some of the polarized politics from the vaccine.

It’s an approach born of necessity: There are simply too many Americans who do not trust public health agencies, the federal government or Democratic administrations to effectively institute a government mandate. While building back that faith is also a priority of the Biden administration, ending the pandemic is too pressing a priority to wait until that work is done.



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