Can I Be Required to Get Vaccinated Against Covid-19?: QuickTake

Sept. 13, 2021, 2:59 PM

U.S. President Joe Biden’s administration will issue an emergency rule requiring large private employers to mandate Covid-19 vaccination or testing, a potentially game-changing move to stem the soaring coronavirus infections from the spread of the more contagious delta variant. Biden also said he’d order all executive branch employees, federal contractors and millions of health-care workers to get shots. Under U.S. law, employers have the power to issue vaccine mandates, as do government authorities.

1. What employers are requiring vaccinations?

Vaccine mandates have picked up after the Food and Drug Administration gave full approval in August to the vaccine made by Pfizer Inc. and its partner BioNTech SE for use in people 16 and older. The Biden administration’s mandate covers more than 17 million workers at hospitals and in other health-care settings. It follows the administration’s July announcement that federal workers had to be inoculated or submit to regular testing for the coronavirus and wear masks on the job. Other public employers announcing similar measures include the Department of Veteran Affairs and the states of California and New York. Private companies requiring most employees to get vaccinated before returning to offices or factories include Morgan Stanley, Google, Facebook, Tyson Foods and the Washington Post. Delta Air Lines Inc. said in late August that employees in the company’s health plan who remain unvaccinated as of Nov. 1 will have to pay a $200 monthly surcharge.

2. What gives employers this latitude?

Most nonunion companies have relatively wide scope to create such requirements largely because employment relationships are presumed to be “at-will” in nearly every 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. Delta’s plan uses employers’ authority to use incentives as part of workplace wellness plans.

3. How can the government order employers to mandate vaccination?

Biden directed the Department of Labor’s Occupational Safety and Health Administration to develop an emergency regulation ordering companies with 100 or more employees to require staff to be vaccinated or tested weekly. The workers will receive time off to get inoculated. Federal law allows OSHA to skip the full administrative process and issue emergency regulations if they’re necessary to protect workers from grave threats. Such rules last for six months. The agency will have to explain the standard, its justifications, its costs, and how it would be enforced, which could take weeks. Once OSHA issues the regulation, it will likely give employers some time to comply.

4. Why is full FDA approval for a vaccine important?

Rules related to the FDA’s sped-up procedure for authorizing the Covid vaccines amid a public health emergency state that individuals have the option to refuse the shots. That gave some workers an avenue to sue over vaccine mandates as long as the FDA hadn’t given the shots formal approval, according to management lawyers. In mid-June, a Texas federal judge tossed out a lawsuit on this basis against Houston Methodist Hospital, ruling that the language on emergency-use products applies to powers and obligations of the head of the U.S. Department of Health and Human Services, not a private employer. Still, some employers preferred to make mandates contingent on a vaccine clearing the FDA’s regular review, to head off challenges.

5. What objections can 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.

6. Can U.S. government authorities require non-employees to get vaccinated against Covid?

The federal government’s power to impose such requirements is limited. However, states clearly have that authority, and they’ve used it in other cases. Mandates don’t mean forced vaccinations, but rather penalties or denial of services for those who don’t get them. Indonesia, which in February required those eligible for Covid vaccination to take it, penalizes refusers by levying fines and denying government services and assistance. Philippine President Rodrigo Duterte threatened to jail those who refuse Covid shots, but his justice secretary countered that no law compels citizens to get vaccinated. A New York state lawmaker proposed a bill in early December that would require Covid vaccines for all residents who can safely take them should public health officials determine that an insufficient percentage of people are getting immunized. It provides no penalty for noncompliance. But the bill has yet to move out of committee, while a competing measure would prohibit New York from mandating immunization, as would proposed laws in a few other states.

7. What are the precedents for government mandates?

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 a part of the Brooklyn borough to be vaccinated against measles or pay a $1,000 fine after an outbreak there in 2019. On a standing basis, all 50 U.S. states require specific vaccines for students to attend school, with each setting its own mandate for inoculations against diseases such as hepatitis B, mumps and chickenpox. Medical exemptions are universally granted, 45 states allow unvaccinated students to attend school if their parents object to immunization for religious reasons, and 15 states permit philosophical objections. States also set out vaccine requirements for college and university students, and many of them have mandates for workers and patients in certain health-care facilities, notably hospitals and nursing homes.

8. Do other countries use vaccine mandates?

According to a study published in October in the journal Vaccine, of the 193 members of the United Nations, more than 100 have nationwide mandates requiring one or more vaccines. Of those, 62 impose a penalty for noncompliance. The most common penalties are fines and denial of school enrollment for children who aren’t vaccinated. A few countries, including Canada, are like the U.S. in that they have regional rather than national mandates.

9. Are there likely to be Covid vaccine mandates for U.S. schoolchildren?

That’s only just becoming a matter of discussion. At first, none of the Covid vaccines distributed in the U.S. were cleared for people younger than 16 because they hadn’t been proved safe and effective in that group. However, in mid-May, regulators authorized the Pfizer-BioNTech vaccine for children as young as 12. Some legal experts think states are unlikely to require Covid vaccines for younger schoolchildren as long as they are authorized only on an emergency basis; Pfizer expects to seek full approval for its vaccine in 12-to-15 year-olds before the end of the year. At the same time, mandates are picking up steam in higher education, with more than 750 colleges and universities in the U.S. announcing vaccine requirements for students. In mid-July, a federal court held that Indiana University’s requirements that students get vaccinated against Covid before returning to classes in the fall are likely lawful, so they won’t be halted while a lawsuit challenging the policies goes forward.

10. 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, after Houston Methodist announced its mandate at the end of March, 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.

The Reference Shelf

  • Related QuickTakes on vaccine hesitancy, the anti-vaccine movement, the delta variant, reactions to Covid vaccines, and Covid among the vaccinated.
  • A Congressional Research Service report on potential constraints on employer mandates for Covid vaccines.
  • Bloomberg Opinion 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.

To contact the reporter on this story:
Robert Wilkens-Iafolla in Arlington at rwilkensiafo@bloomberg.net

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

Lisa Beyer, Jay-Anne Casuga

© 2021 Bloomberg L.P. All rights reserved. Used with permission.

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