The past week has brought a flurry of news about companies and governments making proof of vaccination mandatory as a condition of employment, or to enter a worksite or business. New York, for example, became the first US city to require proof of vaccination for anyone looking to dine, work, or attend a concert indoors, while companies such as Tyson, Netflix, Facebook, and Walmart have implemented vaccine mandates for employees.
Some argue these measures don’t go far enough: As of Aug. 5, only half of the US population was fully vaccinated, and advocates of universal vaccine mandates say the US can no longer rely on such a fragmented approach. The highly transmissible delta variant is only increasing that urgency, and the longer Covid-19 circulates through the population, the more time it will have to mutate into variants we’re even less prepared to handle.
There’s just one big question surrounding all these mandates, both the real and the hypothetical. Is this…legal?
Are universal vaccine mandates unconstitutional?
To be clear, the White House says it is not considering a blanket mandate that would apply to all Americans. (Rochelle Walensky, director of the CDC, has also said “There will be no federal mandate.”)
Indeed, what some people are calling a vaccine mandate for federal employees (announced by US president Joe Biden at the end of July) is technically not a mandate at all: Federal government workers who say no to the vaccine and yes to masks and regular testing can continue to go to work.
But if the federal government did choose to make inoculation mandatory for all citizens, legal experts say it would have the legal standing to do so. Such a regulation would still allow people to opt-out for religious or medical reasons, such as an allergy to one of the vaccine ingredients.
The 1905 case that made universal mandates legal
The US government has held the authority to institute universal vaccine mandates for more than a century, ever since Jacobson v. Massachusetts, a case involving the issue, was brought before the Supreme Court in 1905.
“That case arose in the midst of an outbreak of smallpox in Cambridge, Massachusetts, in 1902. Cambridge introduced an ordinance requiring all adults be vaccinated or revaccinated against smallpox. If they didn’t, they would have to pay a fine of $5,” Joanne Rosen a professor at Johns Hopkins Bloomberg School of Public Health explained in an interview published by the school. “Jacobson was a resident of Cambridge who, for a number of reasons, objected to the vaccination mandate and brought a lawsuit against Massachusetts. He raised a number of arguments, including one that his constitutionally protected liberty interests were being infringed by this mandate.”
The Supreme Court disagreed, ruling that states have “the rights of the individual may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations as the safety of the general public may demand.”
And as Joseph Allen, an associate professor at Harvard University’s T.H. Chan School of Public Health, pointed out in a recent op-ed for the Washington Post, we’ve been abiding by that logic ever since. “It’s routine to get vaccines for all sorts of things,” Allen writes. “Immunization records are required to go to school, to summer camps and for international travel. We have a silver bullet that can end this crisis. Why are we afraid to pull the trigger?”
To be sure, a universal mandate would be logistically complex, and it’s unclear what kind of consequences one might face for ignoring it. In Indonesia, for example, holdouts are facing fines.
Is it legal for employers to enforce vaccination mandates?
Biden and state officials are calling on workplaces of every size to step up and make vaccination necessary. (So is Quartz’s CEO.) In the US, these mandates are also legal, as the Equal Employment Opportunity Commission made clear in April. Its technical guidance states: “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for Covid-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.” In other words, employers must provide exemptions for those whose religious beliefs or medical conditions prevent them from being vaccinated. Companies may also have to bargain with union representatives in the case of unionized workplaces.
The EEOC also urged employers to consider the impact of a vaccine mandate, writing “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a Covid-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” It also clarified that companies have the right to use incentives to persuade employees to get vaccinated—there’s nothing wrong with offering cash for jabs, as Tyson Foods will do—and it’s legal for employers to set up vaccine clinics on site.
Right now, many businesses have given employees until the fall to decide whether they will get vaccinated or face termination. (Companies are first obligated to assess the risk the unvaccinated person would present if they remained employed, and weigh whether someone could work from home rather than be let go, according to the Society of Human Resources Management.)
But employees who are fired for remaining unvaccinated would likely not be entitled to unemployment benefits, since noncompliance would be seen as a violation of company policy.
Is it legal for a business to ban unvaccinated customers?
Just as companies are legally entitled to insist on vaccination for their staff, they can also enforce the same rule for customers and others who want to enter their property. There’s nothing illegal about asking someone to present their vaccination card at the door, or using vaccine passes, an increasingly common practice in Europe.
Generally speaking, business owners can restrict access to their properties as they please, as long as their criteria do not discriminate against a protected class, such as one racial group or religion, says Dane Ciolino, a professor at Loyola University New Orleans College of Law. As he told Marketplace, “Unvaccinated people are not a protected class.”
States like Florida and Texas, where officials have enacted executive orders banning vaccine mandates for employees or customers, are mostly creating political theater. Their laws are toothless because private businesses in those places can still choose to use vaccine mandates without facing fines or another penalty, Robert Field, a law and public health professor at Drexel University, also explained on the show. All officials can do is withhold state funding that would normally go to a business that disregards the executive order.
Even someone who had a medical reason for not getting vaccinated could still be barred from entry to a private business, Patricia Kuszler, a University of Washington law professor, told Marketplace: “I don’t see attending a basketball game as a fundamental right.”