Erica Anderson, Associate Member, University of Cincinnati Law Review
On March 13, 2020, millions of Americans clocked out from work, drove home for dinner, and never came back. Nearing a year later, many buildings remain vacant as only one in four Americans have the pleasure of working outside of their own four walls. However, there was a single light at the end of the seemingly endless 2020 tunnel—a COVID-19 vaccine.
With mass vaccinations at the horizon, many employers plan to invite their workers back inside their offices. How quickly employees can return to in-person work will likely depend upon how many employees are vaccinated—if they even have a choice.
Although vaccinations may be the strongest weapon against global outbreaks such as the coronavirus, recently distrust has spiked in vaccines and the industries behind them. Even some healthcare workers have come forward with their anti-vaccination stances. Yet, 43% of employers are considering a COVID-19 vaccine mandate, and employers have already begun to fire employees who refuse the vaccine. This controversy begs the question: can their bosses make them get vaccinated anyway?
Whether employers can require employees to get a vaccine depends upon the type of employer. Part A of this section discusses the law for public employers, and Part B discusses the law for private employers. Part C of this section summarizes the various legal exceptions to vaccine mandates.
A. Public Employers
In the world of politics, the possibility of vaccine mandates is a hot and wildly debated topic. Yet, most are unaware that the argument was already settled as a matter of law over 100 years ago in Jacobson v. Massachusetts.
In the early 1900s, smallpox sailed through air of Massachusetts infecting over 1,500 people, and killing almost one-fifth of them. Massachusetts citizens had two options—get the smallpox vaccine or pay a fine. Henning Jacobson refused to do either, arguing that the vaccine mandate violated his right “to live and work where he will.”
The Supreme Court rejected Jacobson’s argument because “upon the principle of self-defense . . . a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The Court ultimately held that societal safety should not merely depend upon individuals’ unwillingness to follow reasonable health regulations. Thus, a required vaccine protecting an entire community against a fatal disease is legal.
The Supreme Court’s ruling in Jacobson is the legal foundation for vaccine mandates forced upon public school students and public hospital healthcare workers. As long as a vaccine is “necessary for public health,” and it is considered a “reasonable regulation,” then it can be mandated upon the whole, or certain members, of the public.
B. Private Employers
Even if the government does not enforce a vaccine mandate, private employers may require employees to get vaccinated because private employers are not confronted with the same constitutional concerns that public employers face. All but one of the 50 states follow a legal doctrine known as “at-will employment.” “At-will employment” means an employer is free to dismiss an employee for any reason that is not illegal. The employer is neither required to provide a warning or establish a justification for the termination.
Employee vaccine mandates face a select few legal barriers. For example, public and private employers exceeding 15 employees must abide by the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).
The ADA prohibits employers from firing an employee who may not adhere to a vaccine mandate due to a disability. A “disability” is vaguely defined as “a physical impairment that substantially limits one or more . . . major life activities . . . .” Employers must offer “reasonable accommodations” to any employee with a qualifying disability under the ADA.A accommodation is considered “reasonable” if it would not create “undue hardship” for the employer.
Title VII prohibits employers from discriminating against employees because of their religious beliefs. However, it only requires employers to provide “reasonable accommodations” for employees whose religious beliefs are “sincerely held.” Courts determine whether an individual’s religious beliefs are “sincerely held” on a case by case basis, but the most influential observances and practices include “attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.”
The only legal exception to the ADA’s and Title VII’s requirements is known as the “direct threat” defense. A “direct threat” is a “significant risk of substantial harm to the health and safety of the individual or others.” To determine whether an employee is a “direct threat,” courts review the duration of the potential risk while also looking at the severity, likelihood, and imminence of potential harm. When balancing the factors, if an employer finds a “direct threat” exists and no “reasonable accommodations” can eliminate that threat, then employers may simply fire the employee to protect all others in the workplace.
Additionally, unions may have an effect on whether certain employers will enforce a vaccine mandate. Unions are designed to provide employees with a collective power to negotiate conditions of their employment with their employer. The National Labor Relations Act prohibits private employers from violating their employees’ right to unionize, and 24 states have laws protecting public sector employees’ right to be union members. Thus, if members of a union do not agree to a vaccine mandate, the union can negotiate for other precautions to be taken instead.
The answer to whether employers can require the COVID-19 vaccine differs depending upon whether the employer is public or private. Part A of this section delves into the constitutionality of a COVID-19 vaccine mandate by public employers, and Part B explores the legality of vaccine mandates by private employers along with foreseeable issues with disability-related and religious exemptions to those mandates.
A. Public employers may or may not be able to require the COVID-19 vaccine depending on whether it is “reasonable” and “necessary.”
In Jacobson, the Supreme Court affirmed that states possess the police power to enforce a vaccine mandate when it is a “reasonable regulation” necessary for public safety. Accordingly, public employers may enforce the COVID-19 vaccine if found to be a reasonable expectation necessary for the pandemic to be under control.
i. Is the COVID-19 vaccine a reasonable regulation?
Vaccines are known to be both safe and effective. For instance, the smallpox vaccine produced a 100% decrease in cases– saving almost 50,000 lives per year. However, similar to most other medical treatment, vaccines are not magical cures with no risk. Some who receive vaccines may not be fully protected, and some may be harmed by the vaccine itself.
For example, the influenza (flu) vaccine only decreases the risk of contracting the flu by 40-60%. Consequently, many who opt to receive the flu vaccine nevertheless catch the flu and are not protected from its symptoms. Yet, many healthcare employers require their employees to get the annual flu vaccine. A flu vaccine mandate is a reasonable regulation because the only known serious side effect caused by the vaccine itself is anaphylaxis,which is a treatable allergic reaction that only occurs in 0.2% of vaccination recipients.
Although the flu and COVID-19 have similar symptoms, their vaccines possess a major difference. The original flu vaccine was created in the early to mid 1930s, but was not widely available to U.S. citizens until 1945. Over a decade of observation was conducted before Americans were offered the flu vaccine.
The same case cannot be made for the COVID-19 vaccine. Before vaccines are made available to U.S. citizens, they are evaluated by the Food and Drug Administration (FDA) for approval. This process often takes 10 to 15 years. The two leading COVID-19 vaccination companies, Moderna and Pfizer/BioNTech, began their clinical trials mid to late summer of 2020, so FDA approval will likely not come for several years. Yet, these COVID-19 vaccines became available within a mere six months. How is this possible?
For the first time in history, the FDA authorized vaccines under the “emergency use authorization” (EUA). The EUA allows, in public health emergencies, for vaccines to be distributed without full FDA approval when there are no other known treatment alternatives. The issuance of EUA does not mean that science has been ignored; the FDA closely assesses all available evidence including known and potential risks and benefits. If the analysis weighs in favor of the vaccine being more beneficial than harmful, then EUA is granted.
No legal precedent exists to determine whether vaccines approved via the EUA are “reasonable.” However, certain facts point toward EUA vaccines, such as the COVID-19 vaccine, not being “reasonable” regulations.
First, the FDA itself states individuals should have the right to refuse the vaccine. Similarly to other rights, however, exceptions will exist. For example, employment attorneys are foreseeing a “public policy exception.”
Second, although the technology used to develop the vaccine has been in development for years prior to the COVID-19 outbreak, and the vaccine is more likely to be safe than not, a great deal of research is yet to be done before the vaccine can be classified as safe and fully approved by the FDA. For example, clinical trials have not been performed on all classifications of people; there has been no testing on the effects of the vaccine on pregnant women.
Because the COVID-19 vaccine has not gained full FDA approval, and the vaccine has not been clinically tested on all classes of people expected to receive the vaccine, public employers may struggle to argue that the COVID-19 vaccine is a “reasonable” regulation.
ii. Is the COVID-19 vaccine necessary for public safety?
In Jacobson, mass vaccination was necessary to protect citizens against smallpox. It was an “effective, if not [the] best-known, way” to eradicate the disease that was killing over 9% of the population. The Supreme Court emphasized that public safety includes protection against “fearful,” “contagious,” and “dangerous” disease.
COVID-19 has caused massive fear amongst the globe. In fact, COVID-19 related fears such as “mortality” and “unemployment rates” have become the “most searched topics in Google search history.” Nationwide fear is not unwarranted, however, as COVID-19 is highly contagious and fatal. COVID-19 particles can live in the air for hours after an infected individual leaves the area. Additionally, its incubation period can last up to two weeks in comparison to the flu’s one to four day incubation timeline.
Evidence clearly shows that COVID-19 has caused widespread fear and is highly contagious, but is COVID-19 “dangerous” by the Court’s standards in Jacobson? According to the Center for Disease Control and Prevention, before a smallpox vaccine was available, the disease killed approximately 30% of all who contracted it. However, the COVID-19 mortality rate in America is less than 1%.
The Court’s definition of “dangerous” disease has been ambiguous. Thus, a reasonable argument can be made that dangerousness does not equate to mortality. COVID-19 can cause serious long-term damage to the lungs, heart, and brain. Notably, it has caused strokes, seizures, and paralysis while increasing one’s risk of Parkinson’s, Alzheimer’s, and heart failure. Although a less than 1% mortality rate seems minimal, 417,000 Americans have lost their lives to COVID-19 in a mere 10 months. Consequently, medical experts assume COVID-19 to be a highly dangerous virus.
B. Private employers can enforce a covid-19 vaccine mandate, and the ADA exception may face trouble.
Conditional upon the existence of an exception, private employers can enforce a vaccine mandate whether the vaccine is “reasonable” and “necessary” or not. Montana is the only state excluded from this conclusion as it does not follow “at-will” employment policies.
However, because COVID-19 is so dangerous, even employees with ADA disabilities or sincerely held religious beliefs will be confronted with legal problems. Courts may find that the risk of COVID-19 poses a “direct threat” as it is highly contagious through the air and could have a fatal impact on those infected. Thus, if an employer enforces a vaccine mandate, and an individual cannot be vaccinated due to a disability or sincerely held religious belief, and cannot reasonably complete his duties in isolation from other employees, then the employer may be able to fire that employee with no legal consequences.
It is unclear whether public employers will be able to enforce a COVID-19 vaccine mandate. Because no other treatment is readily available, courts will likely find the vaccine to be necessary to public safety. Whether the vaccine is “reasonable” is uncertain. On the one hand, the vaccine may be viewed as a “reasonable regulation” because clinical trials have been performed with no major side effects. However, there is a valid argument to be made that the vaccine is an unreasonable regulation as it is not fully FDA approved.
As for private employers, all states except Montana are subject to “at-will” employment policies. This means employers can enforce upon their employees anything that is not illegal, and fire those employees who do not comply. Vaccine mandates are only illegal when forced upon those with disabilities or sincerely held religious beliefs that conflict with the vaccine, unless, of course, a “direct threat” exception exists. In that case, employees with disabilities or sincerely held religious beliefs can be legally terminated for refusing the vaccine. Beyond these exceptions, a union may be able to negotiate out of a COVID-19 vaccine mandate, but it is not guaranteed.
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 See generally Brian Greenwood, The contribution of vaccination to global health; past, present and future, Phil. Trans. R. Soc. B. (2014).
 Talha Burki, The online anti-vaccine movement in the age of COVID-19, 2 Lancet Digital Health, 504 (Oct. 2020).
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 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
 Michael R. Albert, MD., et. al., Smallpox Manifestations and Survival During the Boston Epidemic of 1901 to 1903, Annals of Internal Med. (Dec. 17, 2002).
 Jacobson, 197 U.S. at 21.
 Id. at 29 (the right to live and work is secured in the Fourteenth Amendment of the Constitution).
 Id. at 27.
 Id. at 29.
 Id. at 29.
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 Jacobson, 197 U.S. at 27.
 Id. at 29.
 Donald C. Robinson, The First Decade of Judicial Interpretation of the Montana Wrongful Discharge from Employment Act (WDEA), 57 Mont. L. Rev., 375, 376 (1996).
 Jay Shepherd, Firing at Will: A Manager’s Guide 4 (2011).
 U.S. Equal Employment Opportunity Commission, Fact Sheet: Disability Discrimination (Jan. 15, 1997); 42 U.S.C § 2000(e)(2)(B) (2012).
 Public employers must also abide by the Religious Freedom Restoration Act which prohibits the government from “substantially burdening” a person’s religious exercise unless the government can withstand strict scrutiny by showing it has a “compelling interest” in enforcing the law and it is using the “least restrictive means” of achieving its goal (Amanda Brennan, Playing Outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII, 68 Am. U. L. Rev., 569, 571 (2018).
 See generally Riggiero v. Mount Nittany Medical Center, 736 Fed.Appx.35 (2018) (holding a nurse suffering from anxiety and eosinophilic esophagitis should not have been terminated for refusing a TDAP vaccine because her disability fell under the ADA and reasonable accommodations were available).
 U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002). https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N.
 Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e (1964).
 United States v. Seeger, 380 U.S. 163, 178 & 185 (1965) (holding personal preferences and social philosophies about religion will simply not suffice).
 U.S. Equal Opportunity Commission, EEOC Compl. Man., Directive No. 915.003 §12-I on Religious Discrimination (July 22, 2008).
 Jacquie Brennan, The ADA National network Disability Law Handbook 9 (2015).
 E.E.O.C. v. Hibbing Taconite Co., 720 F.Supp.2d 1073, 1082 (2010).
 The Utility Workers Union of America, What are the Benefits of Being a Union Worker? https://uwua.net/what-are-the-benefits-of-being-a-union-worker/ (last visited Feb. 18, 2021).
 American Federation of State, County and Municipal Employees, States with Comprehensive Collective Bargaining Laws (Nov. 2017) https://files.epi.org/uploads/bwp-collective-bargaining-map.pdf.
 Jacobson, 197 U.S. at 25 (citing Gibbons v. Ogden, 22 U.S. 1 (1824)).
 Ross S. Federman, Understanding Vaccines: A Public Imperative, 87 Yale J. of Biology & Med., 417, 417 (2014).
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 Pam Belluck, et. al., Vaccine Injury Claims Are Few and Far Between, N.Y. Times (June 18, 2019) https://www.nytimes.com/2019/06/18/health/vaccine-injury-claims.html (over the past 12 years in the United States, approximately 126 million doses of measles vaccines have been given, and 143 people received compensation for injuries related to the vaccine).
 Centers for Disease Control and Prevention, Vaccine Effectiveness: How Well do the Flu Vaccines Work? (Dec. 16, 2020) https://www.cdc.gov/flu/vaccines-work/vaccineeffect.htm.
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 U.S. Department of Health and Human Resources, Food and Drug Administration, Emergency Use Authorization of Medical Products and Related Authorities, 1, 24 (Jan. 2017) (the President may waive the option for refusal for members of the armed forces).
 Robert Iafolla, Emergency Virus Vaccines Approval Adds More Risk to Job Mandates, Bloomberg Law (Dec. 30, 2020) https://www.bloomberglaw.com/product/blaw/document/QM5SFUDWRGG9?criteria_id=3e481f7ca6a64776448e33d568b03109.
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 Centers for Disease Control and Prevention, COVID-19 Vaccination Consideration for People Who Are Pregnant (Jan. 7, 2021) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/pregnancy.html.
 See generally Jacobson v. Massachusetts, 197 U.S. 11 (1905).
 Id. at 31 n.1.
 Id. at 34.
 Alisha Arora, et. al., Understanding coronaphobia, 54 Asian J. of Psychiatry, 1, 1 (2020).
 See generally Xi He, et. al., Temporal dynamics in viral shedding and transmissibility of COVID-19, 26 Nature Medicine, 672 (May 2020).
 Smriti Mallapaty, How deadly is the coronavirus? Scientists are close to an answer, Nature (June 16, 2020) https://www.nature.com/articles/d41586-020-01738-2.
 Centers for Disease Control and Prevention, Scientific Brief: SARS-CoV-2 and Potential Airborne Transmission (Oct. 5, 2020) https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sars-cov-2.html.
 See generally Stephen A. Lauer, MS, PhD, et. al., The Incubation period of Coronavirus Disease 2019 (COVID-19) From Publicly Reported Confirmed Cases: Estimation and Application, ACP J. (May 5, 2020) https://www.acpjournals.org/doi/pdf/10.7326/M20-0504.
 Sam Ghebrehewet, et. al., Influenza, BMJ (Dec. 7, 2016) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5141587/.
 Leora I. Horwitz, MD, MHS, et. al., Trends in COVID-19 Risk-Adjusted Mortality Rates, 16 Journal of Hospital Medicine, 90, 91 (Feb. 2021) https://www.journalofhospitalmedicine.com/jhospmed/article/230561/hospital-medicine/trends-covid-19-risk-adjusted-mortality-rates (As of August 2020, the COVID-19 mortality rate of 0.38%).
 Jacobson, 197 U.S. 11, 39 (1905) (the Court consistently references “dangerous disease,” but never defines it).
 Mayo Clinic, COVID-19 (coronavirus): Long-term effects (Nov. 17, 2020) https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351.
 ABC News, WHO warns of coronavirus, now dubbed COVID-19, is ‘public enemy number 1’ and potentially more powerful than terrorism (Feb. 11, 2020) https://www.abc.net.au/news/2020-02-12/coronavirus-public-enemy-number-one-vaccine/11956446.
 Robinson, supra note 20.
 Cf. Arline v. Sch. Bd., 772 F.2d 759, 765 (11th Cir. 1985) (holding a teacher with tuberculosis was not a “direct threat” to students because the disease is not transmittible through the air).
 Compare with Doe v. University of Maryland Medical System Corp., 50 F.3d 1261, 1265-6 (4th Cir. 1995) (holding that a fatal infection weighs in favor of a “direct threat” finding).