Will the COVID-19 vaccine be mandatory? What the law says

Can the government or your employer make the COVID-19 vaccine compulsory?
/ Source: TODAY

With Moderna and Pfizer announcing encouraging results, the COVID-19 vaccine may become available before the end of the year — a long awaited milestone in the coronavirus crisis for some, and a source of worry for others.

Half of Americans said they wouldn’t get a free U.S. government-approved vaccine if it were ready today, according to a Gallup survey released in October. That's a sharp decline from July when two-thirds said they would agree to vaccination.

Previous polls found many people who were reluctant to get immunized worried about the safety of a vaccine that’s being developed with unprecedented speed.

But lots of people opting out would delay herd immunity, so some officials support compulsory immunizations. In August, Australia’s prime minister suggested the vaccine would be mandatory in his country, but later backtracked on those comments.

That same month in Virginia, the health commissioner said he planned on mandating the vaccine, but a spokeswoman for the state’s governor later said there were no plans to do so, local media reported.

In November, the New York State Bar Association recommended the state consider making it mandatory for all residents to get the shot, except those exempted by doctors.

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Can the federal government require Americans to get the shot?

A key member of the White House coronavirus task force assured it won’t happen. Dr. Anthony Fauci said he would “definitely not” support a nationwide mandate of the COVID-19 vaccine.

“You don't want to mandate and try and force anyone to take the vaccine. We've never done that. You can mandate for certain groups of people like health workers, but for the general population you cannot,” Fauci said in August.

“We don't want to be mandating from the federal government to the general population. It would be unenforceable and not appropriate.”

It’s a different story for orders issued by states, cities or businesses, but even then, mandatory vaccination wouldn’t be forced vaccination.

“Nobody's talking about coming to your house, holding you down and vaccinating you,” Dorit Reiss, a law professor at the University of California Hastings College of the Law in San Francisco, told TODAY.

Refusing to follow a mandate could mean a fine, tax or other penalty, said Reiss, who studies legal and policy issues related to vaccines.

Here’s what to know about the COVID-19 vaccine and U.S. law:

Can the federal government mandate the vaccine for the general population?

Almost certainly not, Reiss said. It has limited powers expressly spelled out in the Constitution; the rest belong to the states.

But the federal government has some ways to get people to vaccinate, imposing it as a condition of getting a passport, for example.

That hasn’t happened before, but such a requirement would be within the federal government’s powers, Reiss noted.

Can states or cities mandate a vaccine?

States have the authority to regulate public health and they have in the past mandated vaccines. The classic case in this area of law, Jacobson v. Massachusetts in 1905, was decided by the Supreme Court after a smallpox outbreak.

Cities have powers, too: In 2019, New York City required people living in four ZIP codes in Williamsburg, Brooklyn, to get the measles vaccine, prove they've already had it or face a $1,000 fine.

But any vaccine mandates must reasonable, proportional and enforced in a nondiscriminatory fashion, Reiss said. She expected COVID-19 hot spots would make the vaccine a requirement for its residents.

Can the vaccine be made compulsory for certain groups of people?

Yes, health workers are the classic example. Hospitals often require some staff to get a flu or hepatitis B vaccine.

Universities may mandate students, faculty and staff to be immunized for certain diseases before coming on campus. Schools may have the same requirements for children.

Can an employer fire you if you refuse to get immunized?

Yes, with some exceptions.

“It's perfectly legitimate for an employer to regulate to make the workplace safer,” Reiss said. “They can certainly fire you if you don't want to follow health and safety rules.”

Employees who are part of a union may be exempt from the vaccine requirement.

Anti-discrimination laws also provide some limits. If you can’t get the vaccine for medical reasons, that could be a disability under the Americans with Disabilities Act, which would require an employer to accommodate you. That could mean requiring you to wear a mask on the job or have limited contact with other people, Reiss said.

The Civil Rights Act of 1964 may protect people who have a religious objection to a vaccine. An employer would have to make a reasonable accommodation as long as it’s not too costly for the business.

These laws apply only to companies with 15 or more employees, so smaller businesses are exempt.

“We think about employers as this huge, amorphous thing, but under the law, they’re also private entities with rights, especially if it's a small mom and pop shop,” Reiss noted.

Can airlines, restaurants, stores and stadiums make the vaccine a condition of doing business with you?

Yes, within the anti-discrimination laws mentioned above.

“They can decide to refuse service to you for pretty much any reason,” Reiss said, pointing out a policy most shoppers are already familiar with: no shirt, no shoes, no service.

People who are covered by anti-discrimination laws can’t just demand a business let them do whatever they want. The company just has to give you a reasonable accommodation, so a store might refuse you entry but offer curbside pick-up of groceries.

Given the backlash against wearing masks, Reiss suspected many businesses won’t have a vaccine mandate because it's difficult to enforce.

“There are people who don't like mandates, period, and they won't like this either,” Reiss said.

“I expect there are also going to be a lot of workers who are grateful that their employer is trying to make the place safer for themselves and others.”