Law on Vaccine Mandates Sparks Doubts for Response to Next Virus

As safeguards against Covid-19 continue to wane, employers and governments are left with only a partially developed legal landscape on workplace vaccine requirements to guide them when the next pandemic hits.

The Biden administration let the Covid public health emergency expire Thursday and has backed off most of its vaccine mandates, including those for federal workers and contractors. The federal government’s power to institute those mandates remains in doubt, with courts at some point blocking its different work-related shot requirements, legal scholars said.

While courts have given much more leeway to state and local governments and private employers, lingering legal obstacles and uncertainties are enough to give them pause.

“When the next health crisis hits, in terms of vaccination requirements, I think federal public health officials will have their hands tied,” said Lawrence Gostin, a law professor and director of Georgetown University’s O’Neill Institute for National and Global Health Law. “The backlash and legal challenges have been so intense that I think businesses and public health authorities will exercise self-censorship—that is, they’ll refrain from mandates out of fear of litigation and backlash.”

Mainstream, politically charged skepticism about inoculation requirements emerged as one of many new realities of a pandemic that led to 1.1 million deaths and more than 100 million confirmed infections in the US. The virus continues to kill about 150 people per day in the US, according to the Centers for Disease Control and Prevention.

Prior to Covid-19, employers outside of the health-care industry generally didn’t require worker vaccinations. Similarly, governments didn’t typically mandate adult vaccinations.

And while shot requirements didn’t usher in massive waves of worker resignations, they did spark hundreds of lawsuits that led to more decisions developing the law on workplace vaccine mandates in a two-year period than during the previous century, legal scholars said.

“We didn’t have vaccine mandate cases because courts were unanimous for over a century on every type of challenge people could come up with,” said Michael Ulrich, a professor of health law at Boston University. “Things are extremely different post-Covid.”

Private Sector Leeway

Companies stand on the strongest legal ground to require vaccinations thanks to the at-will employment doctrine, which proved durable against vaccine mandate lawsuits, scholars said. That doctrine, which permits private employers to fire workers for any legal reason, is in place in every state except Montana.

Montana, Idaho, Utah, and Tennessee enacted bans on workplace Covid vaccination requirements, while more than a dozen states empowered workers to seek exemptions, according to legislative information collected by the National Academy for State Health Policy.

Employers could see similar state-level measures pop up again.

In addition, the US Supreme Court is poised to dial back employers’ wide latitude to reject religious objections to workplace policies in Groff v. DeJoy, which the justices are expected to decide by the end of the current term.

States Survived Challenges

States broke generally along partisan lines: 11 mostly Democratic-leaning states imposed some form of state employee vaccine mandate, while 17 mostly Republican-leaning states banned such rules, National Academy for State Health Policy information shows.

The vast majority of courts rejected challenges to mandates from public employers and state and local governments, legal scholars said. But the most significant area of legal uncertainty concerns whether those requirements must allow for religious exemptions.

The US Court of Appeals for the Second Circuit upheld New York’s health-care worker mandate with no religious opt-out, as did the First Circuit with respect to a similar requirement in Maine.

The Supreme Court declined to take up those cases.

But a federal district court in Mississippi opened up the possibility of a circuit split with its April ruling that requires the state to provide religious exemptions to its school vaccine mandate.

Feds Stymied

The Biden administration, however, repeatedly encountered federal court resistance to its shot requirements for federal employees, federal contractors, health-care workers, employees at large private businesses, and workers in the Head Start program.

The Supreme Court provided some clarity by killing the Occupational Safety and Health Administration’s shot-or-test rule but allowing the mandate for workers at health-care facilities receiving Medicare and Medicaid funding.

Yet uncertainty for the other types of federal inoculation rules potentially limits future administrations, legal scholars said.

“Mandates from employers and states largely held, but it was different for mandates at the federal level,” said Dorit Reiss, a professor at the University of California Hastings College of the Law who specializes in vaccine policy. “That’s because of the connection between federal mandates and the conservative legal movement’s opposition to the administrative state.”

Judges appointed by Republican presidents—in particular, those tapped by President Donald Trump—were responsible for most of the rulings that rejected the Biden administration’s workplace vaccine rules as of January 2022, according to a Bloomberg Law analysis.

Emergency Use Authorization

A legal theory workers used to challenge Covid vaccines could reemerge if governments and employers mandate another brand-new vaccine, legal scholars said.

Although it was raised in many lawsuits, one federal district court decision squarely rejected the argument that private employers can’t require a vaccine that the Food and Drug Administration authorized on an emergency basis, they said.

How courts deal with that legal theory in the future depends on how the Supreme Court rules on a challenge to the FDA’s approval of the abortion pill, scholars said.

Yet at their core, many vaccine mandate rulings involve weighing the seriousness of the health threat against the intrusiveness of the intervention, said Robert Field, a professor of law and public health at Drexel University.

“If a similar situation were to arise, judges would also be weighing those factors,” Field said. “We’ll always have that conservative-liberal split between reining in the government and giving it leeway to protect the public, but there are enough judges who aren’t ideologues and will do that balancing.”