The Future of COVID-19 Vaccine Mandates in the United States

March 19, 2021
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by Christine Pratt  • 8 min read + video

Last month, the U.S. Food and Drug Administration (FDA) approved a third COVID-19 vaccine, which will allow more Americans to access a vaccine if they choose to receive it. While many hope that the vaccines will enable their communities to reach herd immunity against the coronavirus and finally see a lifting of government restrictions on personal liberty (battles First Liberty has been engaged in since the early days of the pandemic), others are rightly concerned about vaccine mandates: Will the Federal or a state government mandate the COVID-19 vaccine? Can private employers require workers to receive the vaccine?

As of today, no government in the United States has mandated that residents must receive a COVID-19 vaccine. If, however, Federal, state, or local governments try to mandate a vaccine, serious constitutional issues would arise.

It’s important to note that the Federal Government lacks the authority to mandate the vaccine, and while the Supreme Court (over 100 years ago) upheld the power of states to require vaccines in some circumstances, there are constitutional and statutory limits to what states and local governments can do.

Some private employers may try to require their employees to get the COVID-19 vaccine, but only if they can establish that the vaccine is a legitimate job requirement. Even then, federal and state nondiscrimination laws require employers to make a reasonable accommodation for employees due to a medical condition, a religious belief, or pregnancy. And several states have religious freedom restoration acts (state RFRAs), which may protect against instances in which a state vaccine mandate creates a substantial burden on a person’s exercise of religion.

Let’s look at some background information about the currently available COVID-19 vaccines. You can also watch the video below to learn more:

Right now, all COVID vaccines in the U.S. are authorized by the FDA under an Emergency Use Authorization (EUA), but the FDA will likely move from the EUA to fully licensing one or more COVID vaccines within the next two years.

If you choose to get a COVID vaccine right now, federal law requires the person giving you the shot to inform you of “the option to accept or refuse administration” of the vaccine, as well as the consequences of refusing the vaccine and any available alternatives to the vaccine. See 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). This same law does not prohibit a state or employer vaccine mandate.

It’s also worth noting that once the FDA has studied the COVID vaccines over the next twenty-four months or so, and the FDA switches from approving the vaccines under the EUA to licensing the vaccines, then the Federal legal protections quoted above will no longer apply.

State legislators, some of whom were inspired by the Federal law on the EUA, have already begun to introduce bills prohibiting a state vaccine mandate. You can check your state’s laws here.

And the World Health Organization has issued a public statement saying that it does not recommend introducing vaccination or immunity requirements as a condition of entry for international travel.

But what if a state or local government mandates the COVID-19 vaccine?

Way back in 1905, the Supreme Court held that the U.S. Constitution permits a state or local government to mandate vaccines during a pandemic.

One hundred and sixteen years ago, during an urgent smallpox outbreak, the U.S. Supreme Court upheld a state law that required every person to receive the smallpox vaccine. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905).

Interestingly, in reaching its decision, the Court noted that just as conscientious objectors must serve in the armed forces during wartime, conscientious objectors to a state vaccine mandate may not opt out of the mandate. But that argument would not hold water in court today, since in more recent times, the Supreme Court has repeatedly held that people have the right to object to the military draft on the basis of their conscience. See United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970); Gillette v. United States, 401 U.S. 437 (1971). Moreover, the Court did not consider whether a religious liberty objection to a vaccination would lead to a different result. Thus, because the Court has not considered a vaccination mandate in over 100 years, it’s not clear how the Court would rule today.

While the Supreme Court has held that the U.S. Constitution does not require religious exemptions from state laws mandating vaccines for public school students, most states provide religious exemptions anyway.

The Supreme Court has generally upheld school immunization requirements as constitutional. See Zucht v. King, 260 U.S. 174, 177 (1922); See also Prince v. Massachusetts, 321 U.S. 158 (1944) (noting that parents “cannot claim freedom from compulsory vaccination [laws] for [a] child … on religious grounds.”).

But even if the Supreme Court has interpreted the Constitution in a way that may not allow for a religious liberty exception to a public school vaccination mandate, every state currently provides religious exemptions to public school vaccine requirements except for the following states: New York, Mississippi, California, West Virginia, and Maine. (In Virginia, parents can receive a personal exemption only for the HPV vaccine, and in Missouri, the personal belief exemption does not apply to public schools, only childcare facilities.)

If a private employer requires employees to get the vaccine, they must grant reasonable accommodations for certain medical objections, unless the accommodation would place an undue hardship on the employer.

The Equal Employment Opportunity Commission issued guidance in December 2020 stating that employers can require employees to get vaccinated pursuant to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” But employees can request an accommodation due to a disability or medical condition. If necessary, an employer also may request medical documentation to support the employee’s request for an accommodation.

If an employee has a religious objection to receiving the vaccine, the employer must provide a reasonable accommodation for the religious belief unless it would pose an undue hardship on the employer. An “undue hardship” is something more than a de minimis cost or burden on the employer. See Trans World Airlines Inc. v. Hardison, 432 U.S. 63 (1977).

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.

We expect to see numerous legal challenges to both state and private employer vaccine requirements.

If you or someone you know has an issue or additional questions about the vaccine, we urge you to immediately contact First Liberty for legal assistance. Our team of lawyers stands ready to assist those whose religious liberty rights are violated by either the government or private employers.

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