Free Choice or Employment: Are Mandatory COVID-19 Vaccines Constitutional?

Photo by Hakan Nural on Unsplash

Janelle Thompson, Blog Editor, University of Cincinnati Law Review

I. Introduction

Since the start of the COVID-19 pandemic, over 100 million people have been infected and 4 million have died worldwide.[1] Tragically, the United States alone contributes over 35 million cases and 600,000 deaths to this total.[2]  With the rise of both the Delta variant and persistent vaccine hesitancy, medical experts fear that the pandemic is far from over. President Biden’s administration plans to address this “American tragedy of rising but preventable deaths” by imposing strict new guidelines for federal workers.[3] In hopes to set the standard for employers and increase inconvenience on unvaccinated employees, federal workers will have to either sign forms attesting that they have been vaccinated or submit to increased rules including mandatory masking, weekly testing, and social distancing.[4]

These measures to protect public health are not without critics, with resistance even making it into the halls of the state legislatures.[5] This blog post focuses on the current state of mandatory vaccines for employment in both the public and private sectors. Part II of this blog details several state-wide efforts to increase vaccination rates among vulnerable populations and the legislative resistance to those efforts. Part III of the blog discusses the constitutional ramifications of vaccine mandates. Finally, Part IV of this blog concludes with ideas on how the Biden Administration should continue to address the global pandemic and vaccine hesitancy.

II. State-Wide Efforts to Increase Vaccine Rates and Resistance

Under the 10th Amendment of the U.S. Constitution, the states generally hold the power to address public health emergencies, not the federal government.[6] In an exercise of that power, the governor of California announced that state employees and health care workers had to get vaccinated or submit to weekly testing.[7] The mayors of New York City and Los Angeles have declared similar policies for municipal city employees.[8]

Many state legislators oppose mandatory vaccine requirements, resulting in the introduction of over 100 bills prohibiting “vaccine discrimination.”[9] In Ohio alone, three bills have been introduced and one passed through both chambers of the legislature.[10] Sec. 3792.02 of OH SB 111 prohibits a private or public entity from requiring “an individual to receive a vaccine for which the United States food and drug administration has not granted full approval; or requiring an individual who has not received a vaccine described to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has elected to receive such a vaccine.” [11]

III. The Constitutionality of Vaccine Mandates

Employers are held to a different standard depending on if the employer is a public or private entity. Employees of private entities in most states are subject to at-will employment.[12] This employer-friendly standard allows employers a broad range of reasons to terminate employment, as long as the termination does not violate any federal law.[13] Therefore, a private employer can impose mandatory vaccines as a condition for employment.[14] A Texas court, for example, dismissed a hospital employee’s case after she asked for an injunction from a hospital rule requiring vaccinations.[15] The court reiterated that Texas employers could fire workers for any reason other than refusing to commit an act that carries criminal penalties to the worker, and that requiring a vaccine is legal and consistent with public policy.[16]

The Supreme Court addressed the constitutionality of vaccine mandates for the public sector over a century ago when a concerned citizen refused to take the smallpox vaccine.[17] In Jacobson v. Commonwealth of Massachusetts, the Court upheld the Massachusetts law authorizing a municipal order that required all inhabitants to be vaccinated against a communicable disease and even specifying a fine for noncompliance.[18]  Furthermore, the Court emphasized a “reasonable and necessary” standard for the prevention and suppression of a disease during a public health crisis.[19]

The Department of Veterans Affairs became the first major federal agency to exercise this power, requiring the vaccine for its frontline healthcare workers.[20] Additionally, the U.S. Equal Opportunity Employment Commission recently announced that employers can require all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.[21] 

IV. Conclusion

President Biden’s goal of pressuring people to get vaccinated by making their lives more difficult is already proving to be an unpopular agenda.[22] As a result, many states are in various stages of introducing legislation that would block employers from requiring vaccines or imposing additional burdens on their unvaccinated employees. The administration should use a more welcome approach to increase the vaccination rate: monetary incentives up to $100 for each individual who gets vaccinated.[23] Additionally, employers should consider giving employees paid time off to get vaccinated, especially since employers can claim tax credits on wages paid.[24] No matter what approach the current administration uses, navigating this ongoing pandemic will take continued flexibility, grace, and endurance.

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[1] COVID 19 Coronavirus Pandemic, Worldometer (Aug. 1, 2021), https://www.worldometers.info/coronavirus/.

[2] Id.

[3] Alexandra Jaffe, Ricardo Alonso-Zaldivar and Jonathan Lemire, Biden orders tough new vaccination rules for federal workers, Associated Press (July 29, 2021), https://apnews.com/article/lifestyle-joe-biden-business-he-999alth-travel-a1670ffa08f1f2eab42c675d99f1d9ad.

[4] Id.

[5]State Lawmakers Submit Bills to Ban COVID-19 Vaccine Mandates and Passports, Nat’l Acad. for State Health Policy (July 29, 2021), https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-mandates/.

[6] Marguerite Z. Hammes & Grant C. Killoran, Covid-19 Vaccination: Legal Landscape and Challenges, 94 Wis. Law. 36, 37 (February 2021). See also U.S. Const. amend. X.

[7] Laurel Wamsley, New Vaccine Mandates Are Coming For Government Employees And Health Care Workers, Nat’l Pub. Radio (July 27, 2021), https://www.npr.org/2021/07/26/1020709931/nyc-will-require-vaccines-or-weekly-tests-for-hundreds-of-thousands-of-city-work.

[8] Id.

[9] State Lawmakers Submit Bills to Ban COVID-19 Vaccine Mandates and Passports, Nat’l Acad. for State Health Policy (July 29, 2021), https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-mandates/.

[10] Id.

[11] S.B. 111, 134th Gen. Assemb., Reg. Sess. (Ohio 2021).

[12] At-Will Employment – Overview, Nat’l Conference of State Legislatures (Apr. 15, 2008), https://www.ncsl.org/research/labor-and-employment/at-will-employment-overview.aspx.

[13] Id.

[14] Bridges, et al v. Houston Methodist Hospital et al., No. H-21-1774, slip op. at 2 (S.D. Tex. June 12, 2021) (Order on Dismissal).

[15] Id. at 1.

[16] Id.

[17] Jacobson v. Cmmw. of Massachusetts, 197 U.S. 11, 12 (1905). See also Erica Anderson, Everybody Take a Shot: The Legal Tightrope for Covid-19 Vaccine Mandates, U. Cin. L. Rev. Blog (Feb. 23, 2021), https://uclawreview.org/2021/02/23/everybody-take-a-shot-the-legal-tightrope-for-covid-19-vaccine-mandates/.

[18] Id. at 12.

[19] Id.

[20] Jennifer Steinhauer, V.A. Issues Vaccine Mandate for Health Care Workers, a First for a Federal Agency, The New York Times (July 26, 2021), https://www.nytimes.com/2021/07/26/us/politics/veterans-affairs-coronavirus-covid-19.html.

[21] EEOC Issues Updated COVID-19 Technical Assistance, U.S. Equal Emp’t Opportunities Comm’n (May 28, 2021), https://www.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance.

[22] Alexandra Jaffe, Ricardo Alonso-Zaldivar and Jonathan Lemire, Biden orders tough new vaccination rules for federal workers, Associated Press (July 29, 2021), https://apnews.com/article/lifestyle-joe-biden-business-he-999alth-travel-a1670ffa08f1f2eab42c675d99f1d9ad.

[23] Alan Rappeport, The Biden administration wants states and cities to pay people $100 to get vaccinated, The New York Times (July 29, 2021) https://www.nytimes.com/2021/07/29/us/politics/100-dollars-covid-vaccine-biden.html.  

[24] Id.