The FDA issued an emergency use authorization for a vaccine for the first time in December 2020. This allows the vaccine produced by Pfizer-BioNTech to be distributed in the U.S. The distribution process will look different in each state. However, generally speaking, The first phase of COVID-19 vaccine distribution will prioritize healthcare workers, people living in assisted care centers, adults ages 65 and older, and adults with high-risk medical conditions. Phase one will most likely go through the spring, and projections estimate that the general public will have access to the vaccine by the summer of 2021.
Now that the vaccine is available, many employers and employees are asking the question, can employers require vaccination as a condition of employment?
Not a new Question
Vaccination requirements are not a new topic of discussion. Schools have mandated that children receive vaccinations since the 1850s in response to a smallpox epidemic in Massachusetts. Since then, state supreme courts have upheld rulings that state police powers include the right to protect the public against infectious disease by enacting universal vaccination requirements (1905, Jacobson v Massachusetts).
There have been long-standing requirements in other industries as well. Health care providers, nursing homes, and other businesses that work with high-risk populations historically have incorporated vaccination mandates. It is important to note that these policies have been clearly outlined in employee materials. The industry must demonstrate a risk to employees and customers to justify such requirements. Other sectors that may meet the guidelines for requiring vaccination mandates include travel and retail.
Legal experts say many employers will have a strong case for requiring employee vaccinations. However, it depends on the industry necessity, and it must be consistent with business operations.
Will Historical Guidelines hold up to Covid?
History has provided case examples used to implement policy both in business and government. But if the past year has taught us anything, there's always a first time for everything, and dealing with the Covid-19 pandemic has caused the world to take a step back and rethink how to react. With that in mind, will business practices regarding vaccinations change?
Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission (EEOC) has determined that COVID-19 meets the "direct threat" definition. With that, employers have been able to exercise more leeway in asking their employees questions that would most likely be determined as "invasive" in a pre-Covid environment. This could include asking where employees have traveled during their off time and requiring documentation showing they have tested negative for the presence of the Covid virus before returning to work. These practices raise the question about whether or not businesses will be more likely to require vaccination if previous guidelines are loosened or relaxed in response to the pandemic. However, the EEOC has not yet released guidance on mandatory vaccination.
Could there be a Federal Mandate?
Legally speaking, the federal government has limited power and currently can not authorize such a mandate. Even if Congress were to pass a law mandating vaccines (or masks for that matter), the president could veto it, and even still, the Supreme Court could rule it unconstitutional. That's not to say a mandate couldn't happen; it would just have to be done at the state level. Historically, matters of public health fall under states' responsibilities. The tenth amendment of the constitution states that any power not explicitly given to the federal government belongs to the states. Since the constitution doesn't precisely note public health matters are assigned to the federal government, those powers belong to the states.
The federal government does have the power to act on its ability to oversee interstate commerce and transportation. In this case, a mandate could be issued that people crossing state borders are vaccinated. However, again this would most likely be a battle brought to the Supreme Court, which could rule that Congress was overextending their power by doing so.
A more plausible option, the federal government, would use federally funded programs to "incentivize" states to comply with a mandate program. States who comply would keep funding, and those that do not would lose funding. This has happened before. When states chose not to raise the legal age of drinking to 21, highway funding was restricted to states who did not comply.
What now?
It's important to remember that even if businesses choose to institute a vaccine mandate, they must allow for reasonable accommodations. These are primarily in place due to the Americans with Disabilities Act ("ADA") and protect those with conditions that may be adversely affected by receiving a vaccine. There are also accommodations concerning an employee's sincerely held religious belief under Title VII of the Civil Rights Act.
If you are a business owner and you are looking to protect your employees and customers, contact your lawyer and keep up on CDC and EEOC requirements and guidelines. In the meantime, best practices are to provide PPE (personal protection equipment), adhere to local and federal provisions, and provide education to your employees on their options for vaccinations. As an employee, keep yourself educated on all regulations and talk to your HR department if you have questions.
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