Are Covid Vaccine Mandates Legal?

This week I am teaching a webinar that includes information on vaccine mandates from states, cities, and private employers.

In the last 24 hours, I’ve updated my slides three times to reflect breaking news announcements and court decisions as a wave of mandates flow over our country.

What does the law say about requiring people to get vaccinated? Isn’t that unconstitutional?

The short answer is “No”- but to explain why I need to bring you back to 1905.

The United States Supreme Court & Vaccines: A 1906 Decision Still Controls
[My thanks to The Constitution Daily for helping me with this history]

Smallpox swept Massachusetts in 1902, and the Commonwealth (Massachusetts calls itself a “Commonwealth, not a “State,” but there is no legal difference) required all citizens be vaccinated, subject to a $5.00 fine if they refused.

Pastor Henning Jacobsen claimed he and his son should be exempt, citing both the Massachusetts and Federal Constitutions (particularly the 14th Amendment), prior injury by inoculation, and that “compulsion to introduce disease into a healthy system is a violation of liberty.” He lost in the Massachusetts Supreme Court.

The case reached the U.S. Supreme Court in 1905, where in a 7-2 ruling, Justice Harlan affirmed the Police Power of a state to enforce regulations to protect the health of her people. That power extended to municipalities within the state’s jurisdiction (Cambridge was the city Pastor Jacobsen was fighting). (For more on the “Police Powers” of the states, see Fontenotes No 91.)

Balancing Pastor Jacobsen’s personal liberties against the state’s legal rights, Justice Harlan noted that a citizen could be forced into military service. “It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one’s body upon his willingness to submit to reasonable regulations established by the [State] for the purpose of protecting the public collectively against such danger.”

Overall, the Jacobsen Court ruled that an individual’s liberty interests are not absolute and could be dependent on the State’s Police Powers, but stopped short of making the State’s powers supreme in all instances:

 “We are not inclined to hold… the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death. – Jacobson v. Massachusetts– 1905

The country’s highest court has returned (tangentially) to the issue of vaccinations in a handful of cases. None have altered the principle of Jacobsen: States have the authority to protect the public’s health, even if that requires citizens to take a vaccine contrary to their personal preferences (with exceptions for “sincerely held religious beliefs” and medical contraindications).

State Courts have also followed Jacobsen in reaching their judgments, such as when Arkansas won a case in 2019 against two University students challenging mandatory Mumps vaccinations that would bar them from class.

The durability of the Jacobsen prioritization of public health was in evidence again last week when a federal judge upheld Indiana University’s requirement that all students be Covid vaccinated before coming to school this fall. (With few exceptions, the order said students who refuse to get vaccinated can have their classes canceled and be barred from access to online attendance.)

The Indiana ruling is the first to address Covid vaccination requirements at universities and colleges directly. It has significant implications for the hundreds of educational institutions with similar prerequisites this fall (for a list of those schools, go here).

Mandating Covid Vaccines for Federal Employees

With Jacobsen in their pocket (and Covid cases threatening to quadruple in August), it is clear why governments at all levels are beginning this week to require Covid vaccines as a condition of employment.

This Monday, the federal government took its first step to require vaccination by announcing front-line health care workers (115,000 employees) within the Department of Veteran Affairs have two months to get a shot if they are not vaccinated already. In an interview with the New York Times, the Secretary of Veteran Affairs Denis McDonough stated, “I am doing this because it’s the best way to keep our veterans safe, full stop.”

Keeping in mind that the federal government employs 20.2 million people (or 14.5% of the country’s workforce) [source], it is improbable that Covid vaccine mandates will be limited to the VA.

In fact, on Tuesday, President Biden said his Administration is considering making vaccine’s mandatory for all federal employees after White House Press Secretary Jen Psaki would not rule out other federal agencies following the VA’s lead. [source]

The first likely change would be in the US Military (1.4 million active-duty) with vaccination rates ranging from 70% (Navy) to 58% (Marines) within the branches. [source] Bringing those numbers to the top make sense, particularly with our armed forces; how do unvaccinated troops affect readiness?

The military, apparently, has been operating under the understanding that vaccines that are under FDA’s emergency use authorization can’t be required. With Monday’s clarification from the DOJ that full authorization is not necessary (discussed below), that should no longer be an issue.

State and Municipal Governments are Following Suit

As I write, state and municipal governments are also issuing vaccine mandates.

Look no further than New York City for a good example. The estimated 40% of Public Hospital employees in New York that are currently unvaccinated have two months to get proof of vaccination or chose to undergo testing weekly.

The inclusion of a second alternative, undergoing frequent uncomfortable testing, is meant to “avoid litigation or a fight with labor unions.” [quote] Time will tell how well that strategy works, but legal precedent is clearly in New York’s favor if this becomes a court battle.

Similarly, and on the same day as New York, California announced that all state employees (not only health care workers) have to be vaccinated starting next week or have testing “at least once a week.”  In making the announcement, California Governor Gavin Newsome added, “We’re at a point now in this pandemic where an individual’s choice to not get vaccinated is impacting the rest of us.” [quote]

With the anticipated escalation of cases in America in the near future, particularly in under-vaccinated counties, it will be interesting to see how many state and municipal* entities will announce their own mandates in the coming days and weeks. Watch specifically if the mandates occur in the hardest-hit communities, which tend to be in more conservative states.

[*Keep in mind that a city more liberal than the state where it is located- think Austin, Texas- may not be able to impose a mandate if it is against state law.]

Can Private Employers Make Their Employees Get Vaccinated?

Two arguments I frequently hear against employer-mandated Covid vaccinations are that they are prohibited by the EEOC and that mandating a vaccine is not permitted until it is fully authorized by the FDA.

Neither is true.

The U.S. Equal Employment Opportunity Commission [EEOC] is responsible for enforcing federal laws protecting employees from discriminatory actions from their employers (if there are 15 or more employees). Those protections extend to all types of work situations, including mandating vaccines.

On June 1st, the EEOC clarified that employer-mandated Covid vaccines are permissible if there are reasonable accommodations in place to protect people who fall under the Americans with Disabilities Act [ADA], Title VII of the Civil Rights Act, or other Federal laws. [source] The Commission restated that position in its updated guidance for employers [What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws] on June 28th.

In the meantime, it is true that all three of the available Covid vaccines currently remain under “Emergency Use Authorization” [EUA] by the FDA, and many people- employees and employers alike- are waiting for full authorization.  (In an Ohio Town Hall presentation on July 22nd, President Biden anticipated full FDA passage sometime this Fall.)

Final FDA authorization might help sway some people who are vaccine resistant- but it is not legally necessary for employer mandates. The Department of Justice [DOJ] confirmed EUA vaccines can be mandated on July 26th with this posted opinion:

“[Does federal law prohibit] entities from imposing such vaccination requirements while the only available vaccines for COVID-19 remain subject to EUAs. We conclude, consistent with FDA’s interpretation, that it does not.” [DOJ Opinion]

Please note: Even with the EEOC and DOJ clarifications in mind, employers still need legal advice on other possible barriers (such as state law) before requiring their employees to get vaccinated.

What Will Happen Next?

Amid the swirl between state and federal political divides, conflicts between municipalities and state governments, employers (such as Parkland Hospital in Dallas) who are considering a mandate in “No-Mandate” states, professional associations calling out for more controls (particularly in health care) adding pressure to local authorities, and the vast majority of unvaccinated Americans feeling strongly against getting the shot– it is highly likely we are headed back to the Supreme Court.

Cases are just beginning to percolate through the system (such as the 117 employees who lost their suit against Methodist Hospital in Houston, currently pending Appeal). Sooner or later, we are likely to see the Supreme Court return to an issue that has been settled law for more than a century.

In the meantime- I’m putting my bet on those requiring vaccination – be it the feds, the states, the employers, and other entities in states trying to enforce public health initiatives. Barring a sudden reversal from the Supremes, individual protests against Covid shots share the same fate as Pastor Jacobsen’s futile stand against Cambridge and the smallpox inoculation so many years ago.

Want to Know More?

I need to correct an injustice in Fontenotes No. 108Published on July 1st, I was listing all the things I saw in our country at the dawn of the second half of 2021. Included in that litany was this: “Women and children and elderly who lost the protection of the public- locked in with their abusers for 16 months.” A reader reached out to me, and on behalf of his son who has been abused in his private life for years, admonished me for excluding men in that phrase. He was right, and I appreciate his correction.

The reality is “1 in 9 men in America experience severe intimate partner physical violence, intimate partner contact sexual violence, and/or intimate partner stalking with impacts such as injury, fearfulness, post-traumatic stress disorder, use of victim services, contraction of sexually transmitted diseases.” [Source] While women are more likely to experience physical abuse (1 in 4), men are equally likely (8.3%) to experience mental abuse in an intimate relationship, such as verbal abuse and abuse of power and control. [Source]

It is important we all keep our sensors tuned to abuse in all forms in our society- and reach out to intervene and assist in any way we are asked or able. My sincere apologies for contributing to a sexist stereotype. Thank you again to my reader who opened my eyes.