Vaccine Mandates- Governments, States and Employers

As the vaccination process continues to roll out across the country, we are seeing questions about legal authority to mandate vaccines, who has the power and who doesn’t. The Kaiser Family Foundation created a research brief addressing the details, and we are here to summarize the ‘need to know’ information for you and your workplace. 

When we speak of vaccination, that applies not only to the Covid-19 vaccination, this applies to all vaccinations. Because the Courts have not had to rule on Covid-19 vaccinations yet, we rely on the precedent set by the Courts in regards to all vaccinations. It is not clear if the Covid-19 vaccination would fall into a special category. Here’s what we know now. 

Starting from the top, the Federal government does not have the legal jurisdiction to mandate vaccinations, but they can enforce the rules of government institutions such as public schools, that create their own mandates. The Federal Government has not created such a mandate, and therefore it hasn’t been challenged or tested in the Courts, but if they did, their jurisdiction would be limited. 

States do have legal jurisdiction to mandate vaccinations for all who are eligible (barring personal religious and medical exceptions.)  In order for a child to attend school, they must be vaccinated. There are varying rules for vaccinations of healthcare workers by state. Many private employers, especially in health-related fields, require an influenza vaccine annually. Based on a ruling in 1905, the Court’s decision still stands, “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” (KFF, 2021)

It is not clear at this point in time if the Covid-19 vaccine will challenge the existing law, but perception is that it will widely depend on public opinion. Many employers are providing the vaccine for employees, in an effort to encourage vaccination, provide more safety in the workplace, and help to achieve herd immunity. Currently public opinion says, “half of the public saying employers should be allowed to require vaccination for COVID-19 (51%) and 45% saying they should not be allowed to do so. While vaccine enthusiasm is rising in the U.S., with more than 6 in ten saying they have already or plan to get vaccinated as soon as possible, there is a small share who say they will only do so if required.” (KFF, 2021) 

When it comes to mandating the Covid-19 vaccine, neither the Federal Government nor States have or plan to mandate vaccination. Due to some ethical considerations with the vaccine lacking FDA approval, there’s a hesitancy to create mandates. Many predict it will be a “wait and see” approach to observe the up-take of vaccinations; no need to create a mandate if people are vaccinated on their own free will. 

As for employers, things are still a bit fuzzy. The general rules are that private entities do have the ability to require vaccination, but it varies by state. Healthcare workers are the exception, but for non-healthcare employers, often they will take a cautious approach to mandates. Vaccination requirements are subject to religious and disability exceptions, and many employers need to negotiate with Unions before they implement such a policy. In 2020 the “Equal Employment Opportunity Commission (EEOC) stated that employers may require employees to provide proof of COVID-19 vaccination without implicating the Americans with Disabilities Act (ADA), though the guidance on this point does not address the vaccines’ current EUA status.” (KFF, 2021)Even if private employers enact a vaccination mandate, States still have the jurisdiction to strike them down. Employers can mandate or strongly incentivize vaccinations but they must offer employees the ability to opt out. It’s important for employers to discuss with necessary stakeholders such as a legal team, Union representative, etc. to create equitable vaccination policies while balancing the public health interest of their staff. 

This is a developing story and we will continue tuning into court cases, public opinion and the uptake of vaccination. If people willingly participate in the vaccination process and we are able to get the pandemic under control, there will be no need for a mandate. However, if the vaccination process is slow and large segments of people abstain, there might be a mandate. Time will tell, but the best thing employers can do for now is to educate, support and provide access to the Covid-19 vaccine. 

Source: 

Musumeci, M. (2021, April 07). Key questions about covid-19 vaccine mandates. Retrieved April 20, 2021, from https://www.kff.org/coronavirus-covid-19/issue-brief/key-questions-about-covid-19-vaccine-mandates/