(CNN) — For those who refuse to receive the covid-19 vaccine, there are many legal ways for public and private actors to make that decision a painful one.
These vaccine requirements will undoubtedly be challenged in court, and some have already done so. But so far, as long as those mandates calling for vaccination have been crafted with the appropriate religious and medical exemptions, the courts have been unwilling to step in to block them.
“The general consensus is that in most situations, mandates are legally allowed,” said Wendy Parmet, professor of law and director of the Northeastern University Center for Health Policy and Law.
Whether a vaccination requirement is legal will depend on who enforces it and how they shaped it. The mandates that have been implemented already appear to have been carefully designed with these factors in mind, although there are still some questions about how the courts will handle the more aggressive government approaches.
But overall, since the delta variant and lackluster vaccination rates have changed the war on coronavirus, lawmakers have many perfectly legal tools at their disposal to require vaccination.
The most relevant case is a 1905 Supreme Court decision confirming a requirement by Cambridge, Massachusetts, that its residents be vaccinated against smallpox.
“That case is a real problem for skeptics of the vaccination mandate,” said Nicholas Bagley, a University of Michigan law professor who specializes in health care and administrative law.
For employers, almost anything goes for vaccination mandates for workers
More and more private companies across the country advertise vaccine mandates every day, and they have a lot of legal discretion to do so.
Some companies have instituted direct requirements for vaccinating their employees, and employees who refuse to comply are shown the door. Other employers have given workers a choice: get vaccinated or submit to an onerous set of rules, such as weekly tests, mask wear requirements and social distancing lawsuits.
Many public employers, including several federal agencies, are taking the latter approach.
“One reason, among many, that we are seeing softer requirements – soft mandates – from employers, including government employers, at this point is that it minimizes the risk of these requirements being frozen in court. “said Lindsay Wiley, professor of public health law at the American University Washington School of Law. “I think there is room for employers and government agencies to go further than they are with these soft mandates.”
Private employers have the most discretion, from a legal perspective. According to Wiley, its main legal limitations are the Civil Rights Act of 1964, which prohibits religious discrimination, and laws that require accommodations for people with disabilities, such as the Americans with Disabilities Act, which can limit the questions that employers can do to workers claiming medical exemptions.
The US Equal Employment Opportunity Commission issued guidance outlining how employers can require vaccinations while complying with those laws. The Justice Department, meanwhile, has announced that, in its interpretation of federal law, employers do not need to wait for the Food and Drug Administration (FDA) to give vaccines its full approval before requiring vaccinations for workers. (All three covid vaccines in the US have been approved under an emergency use authorization).
Employers may also be bound by collective bargaining agreements, but these do not prevent employers from implementing vaccination requirements for new or non-union employees, as Disney announced on Friday.
The other potential obstacle to an employer’s ability to require vaccinations would come in the form of laws prohibiting such mandates, as some states have considered implementing.
Plenty of room for maneuver for state and local governments
Although they do not have all the discretion that private actors have, public entities have a lot of legal leeway to require Americans to be vaccinated, at least in certain circumstances. Various state and local governments have announced such requirements for at least some of their employees.
“There are some open questions about how much a state government or a local government or even the federal government can do when acting as an employer that may be different from how far it can go with respect to the entire population,” Wiley said.
Still, the legal capacity of state or local governments to require vaccines in non-employment settings is well established. There is a history of state or local requirements that students be vaccinated to attend school. In addition, those governments could establish requirements for participants in other activities, such as indoor mass gatherings, to be vaccinated.
What places such moves on solid legal ground is the 1905 Supreme Court decision, Jacobson v. Massachusetts, which confirmed the requirement for the smallpox vaccine in Cambridge. Jacobson was cited by a federal appeals court that on Monday rejected a challenge to the covid vaccine requirement filed by Indiana University students.
Even Conservative Judge Neil Gorsuch has indicated that he would vote in favor of Massachusetts’ vaccination mandate if Jacobson’s case were to go to court today. However, Gorsuch emphasized the peculiarities of how the vaccine mandate was designed; the penalty for not getting vaccinated was only a fine, and the mandate included some exemptions.
A New York City measles vaccination mandate upheld by a state court in 2019 is another useful example of what the courts would be willing to uphold now. New York had a strong case, according to Professor Dorit Reiss of the University of California-Hastings School of Law, because it targeted the mandate specifically at neighborhoods where a measles outbreak was occurring, and the punishment was a fine, not a jail sentence.
“In general, the more limited terms will likely be stronger, legally, than the broader terms, and the lesser punishments will hold up better than the more draconian or extreme punishments,” Reiss said.
Fewer options – but there are still options – for federal policymakers
Although the hands of the federal government are tied in some way, national policymakers still have options for increasing the costs of not getting vaccinated.
The executive branch, without any further action from Congress, is the most limited in what it can do, beyond the requirements it imposes on workers in its agencies. Given the pushback the U.S. Centers for Disease Control and Prevention (CDC) has received in court for its cruise ship vaccine regulations and its eviction moratorium, it seems extremely unlikely that they or another federal agency could act unilaterally to impose a general vaccination mandate.
If Congress were to get involved, there are a couple of ways the federal government could try to implement a vaccination mandate, although lawmakers “would have to find a way, find a hook, to connect that with their existing constitutional powers,” Wiley said. .
Congress’s ability to require vaccines under the Constitution’s interstate commerce clause appears to be limited, thanks to the Supreme Court ruling in the Affordable Care Act of 2012. But the federal government could explore its authorities under the tax and expenditure clause of the Constitution. That approach could include creating a tax penalty for the unvaccinated or conditioning federal funding to states on whether those states were implementing a vaccination requirement.
“The federal government could do it indirectly quite easily,” Wiley said, “but to do it directly, saying that it is now illegal or that you have to pay a criminal penalty, rather than a tax penalty, would be more difficult for Congress to do. “
–
