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

Dec. 18, 2020, 5:01 AM

As U.S. officials began distributing the first doses of authorized Covid-19 vaccines, some health experts worried that too few people would take them for the immunization campaign to stop the spread of the disease. That prospect has provoked discussion of vaccine mandates by government authorities and employers. Under the law, both have the power to issue such orders. Whether mandates are effective in expanding the uptake of a vaccine is a matter of debate, however.

1. Can U.S. government authorities require people to get vaccinated for Covid-19?

President-elect Joe Biden has said he doesn’t support making vaccinations mandatory, and in any case, the federal government’s power to impose vaccine requirements is limited. However, states clearly have that authority, and they’ve used it. Mandates don’t mean forced vaccinations, but rather penalties or denial of services for those who don’t get them. In an initial move in that direction, a New York state lawmaker proposed a bill in early December that would require Covid-19 vaccines for all residents who can safely take it should public health officials determine that an insufficient percentage of people are getting immunized.

2. What are the precedents?

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.

3. Are there likely to be Covid-19 vaccine mandates for schoolchildren?

Not anytime soon. The first Covid-19 vaccine authorized for distribution in the U.S. by the Food and Drug Administration, made by Pfizer Inc. and BioNTech SE, was only given a green light for people 16 years old and above. That’s because it was only proved safe and effective for that group. That vaccine and another one by Moderna Inc., which was set for FDA clearance after a panel of experts supported it on Dec. 17, are being tested in children as young as 12.

4. Can employers require vaccinations?

In general, yes. Most nonunion companies have relatively wide latitude 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. Already, many health-care facilities require workers to get inoculated against certain diseases, sometimes in response to state provisions. The scope of the coronavirus pandemic may motivate companies in other industries to adopt mandates, particularly if their employees work in close quarters or in frequent contact with the public.

5. Can workers raise objections?

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-19 vaccines.

6. What about religious objections?

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-19 vaccination campaign needs to reach a significant portion of adults. Some health specialists argue that mandates -- especially if they’re imposed by governments -- will only boost resistance to taking vaccines and provide ammunition for anti-vaccine activists at the political fringe.

The Reference Shelf

  • Related QuickTakes on vaccine hesitancy, the challenges of deploying vaccines, and the anti-vaccine movement.
  • A Bloomberg News article covers the discussion about vaccine mandates within companies so far.
  • 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.
  • A Kaiser Health News report on Covid-19 vaccine studies in children.

To contact the reporter on this story:
Robert 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

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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