Covid Vaccine Mandates and the Backlash Against Them: QuickTake

Faced with a new wave of coronavirus infections, Austria and Italy became the first countries in western Europe to make Covid-19 vaccines compulsory. A handful of other nations -- including Indonesia,Turkmenistan, Micronesia and Ecuador -- have also issued such mandates. A number of others have stopped short of that, requiring vaccination for access to public places, in some cases with the option of taking a test instead. Such edicts are controversial. Austria’s sparked protests. A requirement by the U.S. and Canada that truckers crossing their border be fully vaccinated sparked demonstrations in Ottawa that were so rowdy the mayor declared a state of emergency. The U.S. Supreme Court Jan. 13 blocked a federal rule compelling large employers to require Covid vaccination or testing.

1. What happens to those who violate a mandate?

Mandates don’t mean forced vaccinations, but rather penalties or denial of services for those who don’t get the shots. Indonesia punishes refusers by levying fines and denying them government assistance. Austria planned to impose a fine of as much as 3,600 euros ($4,000) on unvaccinated people over the age of 18, starting in mid-March.

2. What are the rules that fall short of mandates?

France’s national assembly approved legislation that would mean only those who are “fully vaccinated” under local rules can go to restaurants, museums and concerts, or get on trains or airplanes. The law would effectively ban a life out of one’s home or workplace for the unvaccinated. Other countries, including Morocco, are requiring proof of vaccination for entry into public places such as restaurants and offices. In Saudi Arabiaand Lebanon, the requirement can also be met with proof of recent recovery from Covid. In the Netherlands, a negative coronavirus test is an alternative. Some countries, such as Australia, England, France, Greece and New Zealand have mandated Covid vaccination for certain workers, notably in health care. The Supreme Court in the U.S. let such a rule take effect there even as it quashed a separate mandate for all employees of large companies.

3. Are vaccine requirements something new?

No. According to a study in the journal Vaccine published in October 2020, before Covid vaccines became available, more than 100 of the 193 members of the United Nations had nationwide mandates requiring one or more vaccines. Of those, 62 imposed a penalty for noncompliance. The most common penalties were fines and denial of school enrollment for children who aren’t vaccinated. A few countries, including Canada and the U.S., had regional rather than national mandates. Government requirements for vaccines have a long history in the U.S. At the turn of the 20th century, the city of Cambridge, Massachusetts mandated that residents get a smallpox vaccination. Pastor Henning Jacobson rejected both the shot and the obligation to pay a $5 fine, appealed all the way to the Supreme Court, and lost in a landmark 1905 ruling. More recently, New York City ordered people in part of the borough of Brooklyn to be vaccinated against measles or pay a $1,000 fine after an outbreak there in 2019.

4. What happened with the Covid vaccine mandate for U.S. employers?

An emergency rule issued by President Joe Biden’s administration, applicable to businesses with 100 or more employees, would have required workers to be vaccinated or to wear a mask and start being tested. The Occupational Safety and Health Administration rule was met by a flurry of lawsuits from Republican state attorneys general, companies and other organizations seeking to block it. The Supreme Court said that OSHA had the power to regulate occupational dangers but not public health more broadly. OSHA withdrew the rule as of Jan. 26.

5. Can U.S. employers require the shots on their own?

They can and they have -- public and private employers both. Most nonunion companies have relatively wide scope to create such requirements largely because employment relationships are presumed to be “at-will” in nearly every U.S. state. Companies can fire at-will workers for any legal reason, which could include refusal to comply with a vaccine mandate. In addition, employers have a legal duty to provide a safe and healthy workplace. Even before the pandemic, many health-care facilities required workers to get inoculated against certain diseases, sometimes in response to state provisions. Employer mandates of Covid vaccines picked up after the U.S. Food and Drug Administration for the first time gave full approval in August to such a vaccine -- the one made by Pfizer Inc. and its partner BioNTech SE -- for use in people 16 and older. Previously the vaccine was authorized only for emergency use. The FDA gave a second vaccine, by Moderna Inc., full approval in January.

6. What objections can U.S. workers raise?

• The Americans with Disabilities Act allows a worker to request an exemption from a vaccine mandate if she has a disability that’s covered by the law. In such a case, the employer must communicate with the worker to determine whether an exemption is a reasonable accommodation given her disability and job responsibilities -- and isn’t an undue burden for the employer. Failing to engage in that process or provide a reasonable accommodation could be grounds for a lawsuit. A worker with a health condition that compromises her immune system has a good chance of prevailing on a claim if she has a doctor’s advice that she should avoid a vaccine. An employer would need to show that allowing a worker to remain unvaccinated would cause an undue burden or pose a direct threat in the workplace, which would be difficult to do if there are alternatives available such as working from home or moving to an area segregated from coworkers. The Equal Employment Opportunity Commission, which enforces federal laws against job discrimination, has said that ADA protections apply to Covid vaccines.
• Title VII of the 1964 Civil Rights Act prohibits workplace discrimination based on religion, giving workers the right to seek an exception to a vaccination mandate based on religious beliefs. The EEOC defines religion beyond membership in a church or belief in God. Religion for the purposes of federal anti-discrimination law covers strongly and sincerely held moral or ethical beliefs, according to the agency. But employers can deny religious accommodations if they would create an undue burden.

7. Are vaccine mandates effective?

There are lively debates among public health authorities and academics about the efficacy of vaccine mandates. Supporters cite studies showing that stricter rules on inoculating schoolchildren lead to lower rates of vaccine-preventable diseases. Most of the data, however, relates to children, whereas a Covid vaccination campaign needs to reach a significant portion of adults. Some health specialists argue that mandates -- especially if they’re imposed by governments -- will boost resistance to taking vaccines and provide ammunition for anti-vaccine activists at the political fringe. On the other hand, there’s some evidence that employer mandates work. After Houston Methodist Hospital announced a mandate at the end of March 2021, the portion of its staff who were vaccinated went from 84% in April to 99% in June; 153 people quit or were dismissed because of the policy, but they represented less than 1% of 26,000 employees. Just 3% of employers with mandates reported a spike in resignations in a November survey by Willis Towers Watson.

The Reference Shelf

• Related QuickTakes on the omicron variant, endemic Covid, and Covid treatments.
• A Bloomberg Law primer on Biden’s vaccine mandate.
• A Congressional Research Service report on potential constraints on employer mandates for Covid vaccines.
• Bloomberg Opinion columnist Ramesh Ponnuru argues Biden’s vaccine mandate was dishonest, while columnist Stephen L. Carter argues that vaccine mandates and liberty can coexist.
• The U.S. Centers for Disease Control and Prevention’s website on state vaccination laws.
• An article in the Journal of the American Medical Association discusses the criteria for deciding when vaccine mandates for schoolchildren are appropriate.

--With assistance from Greg Stohr and Alessandro Speciale.

To contact the reporters on this story:
Robert Wilkens-Iafolla in Arlington at rwilkensiafo@bloomberg.net;
Alan Katz in Paris at akatz5@bloomberg.net

To contact the editors responsible for this story:
Jo-El Meyer at jmeyer154@bloomberg.net

Jay-Anne Casuga, Lisa Beyer

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