Which States Could Require COVID-19 Vaccinations?
‘A safe and effective vaccine could end the coronavirus pandemic, but for it to succeed, enough people will have to get inoculated’ said a new article by Debbie Kaminer, a Law Professor, Baruch College, CUNY.
Kaminer’s article published by The Conversation on July 21, 2020, continued saying: ‘Most surveys have found that most adults say they would get the vaccine. While that might protect most people who get vaccinated, it may be insufficient to reach herd immunity and stop the virus’s spread.’
However, just 50% of Americans said they plan to get a COVID-19 vaccine, as of June 30, 2020.
‘In the United States today, where even mask mandates are controversial, it is unlikely that many states will enact a compulsory vaccination policy for everyone.’
‘I see a few approaches governments and employers can take to ensure enough Americans are immunized against COVID-19.’
Can governments require vaccinations?
The most intrusive policy would involve government mandating vaccination for all Americans, with the exception of those with a medical exemption. People are often surprised to learn that states would likely have the legal right to enforce such a rule.
In the 1905 landmark case Jacobson v. Massachusetts, the United States Supreme Court upheld the constitutionality of a state criminal law that required all adult inhabitants of Cambridge to get a smallpox vaccine or be fined.
The US Supreme Court explained that an individual’s liberty rights under the U.S. Constitution are not absolute and the mandatory vaccination law was necessary to promote public health and safety.
While Jacobson v. Massachusetts is over 100 years old, courts continue to rely on the reasoning of the case. State governments still occasionally enact broad compulsory vaccination policies.
In 2019, in the midst of a measles outbreak, New York City mandated that anyone over 6-months of age who lived, went to school, or worked in several ZIP codes within the city had to be vaccinated against measles or be subject to a fine.
On May 28, 2020, the New York State Bar Association’s Health Law Section even recommended mandatory COVID-19 vaccination for all Americans.
Additionally, there is a risk that heavy-handed public health tactics can backfire and escalate tensions, increase mistrust of government, and unintentionally increase the influence of the anti-vaccination movement.
What if only some people must get vaccinated?
All 50 states currently have some type of compulsory vaccination laws covering K-12 schoolchildren, and many states have compulsory vaccination laws covering college students. These laws typically allow for some type of medical exemption. States may also have mandatory vaccination laws covering employees in nursing homes and health care facilities.
If states require this type of targeted mandatory COVID-19 vaccination, they could cover those most at risk and those most likely to be in contact with others in ways that could stem the virus’s spread.
One of the most controversial issues surrounding compulsory vaccination laws is the religious or philosophical exemption, which some states have eliminated in recent years. In the aftermath of the recent measles outbreaks, both New York and California eliminated these exemptions from vaccination laws covering schoolchildren.
Courts have explained that while compulsory vaccination laws may burden religious practices, religious exemptions are not constitutionally required under the First Amendment’s free exercise clause since mandatory vaccination does not single out religion and is not motivated by a desire to interfere with religion.
What can employers require?
Private employers have significant flexibility in requiring vaccination. Yet few businesses outside of healthcare facilities have done so, partly out of fear that employees would consider these policies to be unacceptable invasions of their personal lives.
There is a risk in a unionized workplace that a mandatory vaccination policy could be struck down if it violates a collective bargaining agreement. However, unlike government-mandated policies, these would not be subject to constitutional restrictions.
Employers may also be concerned that if policies do not include significant religious exemptions, workers could sue, claiming religious discrimination.
However, it is unlikely that federal law would require employers to accommodate employees requesting a religious exemption to a COVID-19 vaccine. Under Title VII of the 1964 Civil Rights Act, the federal law prohibiting religious discrimination in the workplace, employers are not required to accommodate religious employees if doing so involves more than a de minimis, or minimal cost.
Government and employers also could make vaccines free and available at convenient locations.
As the U.S. government fast-tracks the development of potential vaccines, it’s important to remember that a COVID-19 vaccine will stop the virus only if enough people get vaccinated. Now is the time for governments and employers to develop policies to ensure it succeeds, concluded Debbie Kaminer’s article.
No conflicts of interest were disclosed.
PrecisionVaccinations publishes vaccine news.