In 1955, Canada used an 18-month polio vaccine trial period to set up a compulsory vaccination program. Facing the same health crisis and given the same time period, the U.S. Federal government chose a limited role in engaging State governments to prepare for and distribute the vaccine. Many claimed the U.S. Federal government’s failure to work with the States to prepare and lead in the 1950s led to distribution problems of the polio vaccine, with many poor communities being overlooked for more than a decade.
Fast forward 65 years and the U.S. finds itself at another precipice; while there is an urgent need for development of a vaccine for COVID-19 across the world, doubts exist whether the Federal government will appropriately engage with the States to be prepared (or able) to act to prevent continued outbreak. In addition, many in the U.S. stand ready to fight any compulsory vaccination program. Finally, in light of the current mask debate, it remains clear that freedom of thought, speech, religion, and the promotion of the individual, all of which are defining characteristics of America, will also make any COVID-19 vaccination program challenging.
State Right to Mandate Vaccination
Courts have ruled that the policing powers of the States absolutely include reasonable regulations established by State legislatures to protect public health and safety, and that such regulations do not violate the 14th Amendment right to liberty: every person is necessarily subjected to restraints for the common good. Real liberty for all, according to this line of cases, cannot exist if individuals can act without regard to the injury that their actions might cause others. In short, States (although not the Federal government) may generally require vaccination if a board of health or similar regulatory body deems it necessary for the good of public health or safety. A State-by-State chart summarizing each State’s power to require mandatory vaccinations, including individual exemptions to such mandates, if such exemptions exist in a particular State can be found here. As illustrated in the chart, certain exemptions are often unavailable during an epidemic (or pandemic) of disease which threatens the safety of the masses.
While State compulsory vaccination requirements are permitted, they are rare. With that said, all States have chosen to legislate vaccinations policies in the areas of school/childcare and certain workplaces, particularly for healthcare employers. A law alert specific to school/childcare vaccination legislation can be found here. Additionally, Virginia’s Health Commission, Dr. Norman Oliver, has stated that “as long as he is still the Health Commissioner, he intends to mandate the coronavirus vaccine.”
Employer Considerations to Mandating Vaccination
With States typically addressing mandated vaccinations in the childcare, school and health-care workplace settings, practical approaches for other businesses are naturally in question. Can and should employers/businesses mandate vaccination of employees during an unprecedented pandemic, when the administration of a novel vaccine could combat a significant public health threat and business concern? Most employees in the U.S. are employed at will. As a general rule, at will employees can be terminated for any legal reason (i.e., not for any discriminatory or retaliatory purposes), presumably including for failure to comply with a mandatory vaccination policy. An employer’s vaccination mandate can and should, however, be addressed in employment contracts, policies, and manuals (for union employees, collective bargaining agreements should also be reviewed). Any employer vaccination mandate should take into consideration the right to local exemptions based on medical history or religious beliefs and should not run afoul of Federal and/or State anti-discrimination laws.
Under the Federal Americans with Disabilities Act (ADA) and similar State laws, employers must provide an accommodation if an employee has a disability that would make vaccination dangerous. Additionally, under Federal law, most employers are legally required to provide reasonable accommodations for an employee’s religious beliefs. Any employer mandatory vaccination policy (or related employment contract provisions) should focus on nondiscriminatory reasonable mandates for employees based on the greater need to protect all employees and the business in a pandemic.
The following criteria are commonly used by Courts to assess the reasonableness of limits on individual freedom and can be helpful to employers in determining whether to establish a mandatory vaccination policy when, or better yet before, a vaccine for COVID-19 is made available: (1) proportionality, (2) precedent, (3) context, and (4) sufficiency of access to the good or service being mandated. We review these criteria below and consider them in relation to a business mandatory vaccination policy.
- Proportionality. Higher levels of risk in the employer’s business or employee population justify more restrictive requirements for employees, where risk is construed as a combination of risks posed by a disease and the ease of transmission of that disease in relevant business circumstances.
- Precedent. Precedent set by prior limitations: more coercive or restrictive approaches should generally only follow failures of less coercive or restrictive approaches. That is, unless there is an immediate and severe risk, employees should be free to exercise their independence to choose to be vaccinated to the extent that vaccination rates outside a mandatory vaccination policy afford enough public protection.
- Context. Social and cultural context of restrictions must also be considered. In a business where trust is fragile, a mandatory policy could undermine what is left of stability or trust. Consider the appeal of less restrictive, less coercive, education-based approaches to an employee population.
- Sufficiency of access. Any employer vaccination policy would require sufficient access to the vaccine being required by the employer. That is, it is patently unfair and nonsensical to demand compliance with a vaccination policy without making the vaccine(s) sufficiently available to employees subject to the mandate.
Employee Refusal to Return to Work
There is also the opposite side of the coin: employees who support vaccination and local or employer mandates for them. Without implementation of a mandatory vaccination policy, many businesses will be left to determine how to handle the employee who refuses to come back to work without widespread vaccination. For guidance on “What to do When Your Employee Refuses to Return to Work Amid Covid-19,” see this Alert.
In anticipation of a vaccine for COVID-19, employers, with the guidance of legal counsel, should review (and consider revising) employment contracts, policies, manuals and collective bargaining agreements. In review, an employer must consider whether a mandatory employee COVID-19 vaccination policy is appropriate and necessary to protect the health and safety of its employees and its business and also the common criteria above. Without the implementation of a mandatory vaccination policy, many businesses will be left determining how to handle the employee that refuses to come back to work without widespread vaccination. Employers should rely on legal counsel to evaluate any employment decisions around those employees refusing to work during the pandemic now or when a vaccine is available.
 In some States, employees have protection from being terminated in violation of public policy.