In December 2020, the U.S. Food and Drug Administration approved two brands of the COVID-19 vaccine, produced by Pfizer and Moderna, for emergency use authorization. A third vaccine, made by Johnson and Johnson, received the same authorization in February 2021. With this authorization, and the ensuing nationwide vaccine rollout, millions of individuals across the nation began to look ahead to the promise of lessening restrictions and increased freedom of movement. The COVID-19 vaccine provides hope for the return to a normal life. But for those who cannot receive a COVID-19 vaccine, how can they be empowered to exercise the same freedoms as those who can? While many recognize being vaccinated against COVID-19 provides a promising path to normalcy, we must work to ensure this path also exists for those who are unable to receive the vaccine as these individuals are both entitled to the same liberties and essential to our workforce.
Will U.S. law require people to receive the COVID-19 vaccine?
In the U.S., the states are solely responsible for creating and enforcing laws with regard to vaccine requirements; there are no federal laws imposing vaccine requirements. The first vaccine law was enacted in Massachusetts in the 1850s to prevent smallpox transmission in schools. To this day, most states only require immunizations for children in grades K-12. It is worth noting that vaccine legislation does change, as it did in New York in 2019 in response to a measles outbreak.
Every state provides to some extent that individuals may be entitled to a vaccine waiver, meaning that, by law, individuals do have vaccine autonomy. “Currently, in many states, individuals wishing to decline the vaccine for medical or religious reasons are able to do so and obtain an official waiver,” explains Dr. George Astrakianakis, occupational health and safety scientist, international infectious disease policy expert and member of the IDC.
There are three legal reasons that states may allow for a vaccine waiver:
Although exemptions vary from state to state, all 50 states and Washington, D.C., allow medical exemptions. Every state except three — California, Mississippi, and West Virginia — allows religious exemptions. A total of 17 states allow philosophical exemptions. Many states align their practices with the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices. While a COVID-19 vaccination requirement does not presently exist in any state as of March 2021, many public health officials and lawmakers anticipate seeing these laws on the books in the near future.
“In the current political and public health environments, we can be pretty sure both that states are going to be addressing the need for mandated vaccinations in educational settings or the workplace and that there will be huge pressure to allow for religious or philosophical waivers in addition to medical exemptions,” says David Parker, a longtime higher education attorney and member of the IDC.
Can employers institute vaccination requirements?
U.S. employers may legally develop and impose mandatory vaccination requirements, but not without caveats. Any employer must consider accommodation requests as required under the laws of their respective states. In addition, employers are required to accommodate requests for waivers by Title VII of the Civil Rights Act of 1964 (religious requests) and the Americans with Disabilities Act (medical requests). Therefore, any business or institution working to provide equal employment and enrollment opportunities must provide accommodations for those who qualify for these exemptions to remain aligned with their goals. Employers also must establish a secure and confidential means of handling these requests, as employees are legally and morally entitled to allow employees to keep their medical and religious information confidential.
In the spotlight of employers who may require the COVID-19 vaccine are health care providers, where employees are working with direct patient contact. “With the safety and efficacy profiles of these vaccines, and considering all we have been through, it is clear COVID will need to be added to the list of vaccines required by health care employers,” says Dr. Douglas Grant, registrar and CEO of the College of Physicians and Surgeons of Nova Scotia and member of the IDC.
Health care employers should consider whether a mandatory COVID-19 vaccination program is necessary and determine the scope of the program. To the extent that any health care institution implements a mandatory vaccine requirement, health care employers should be prepared to receive medical, religious and/or philosophical vaccine waivers. Both health care workers who can, and those who cannot, receive the COVID-19 vaccine should be given a clear path forward that provides for their needs as well as their confidentiality. “Health care employers must maintain a database of employees who are ‘work–ready,’ having received both recommended vaccine doses; for those whose status is ‘pending‘ because they are awaiting their turn for their first or second doses; and for those who have ‘declined‘ the vaccine and requested official waivers for medical or other reasons,” says Dr. Astrakianakis.
Can private businesses institute vaccine requirements for customers?
Private businesses in the United States are legally treated as private persons and therefore are permitted to set rules about whom they allow entry to (as anyone familiar with a “no shirt, no shoes, no service” sign can attest). However, as with employers, there are legal limitations that could apply to businesses that plan to create vaccination policies for customers.
First, private companies must work within the laws of their local jurisdictions. As vaccination increases, medical researchers are continuously gathering data on whether the COVID-19 vaccines prevent transmission and how long they provide immunity. As this data continues to emerge, localities may create laws to ensure that private companies do — or don’t — have the authority to issue vaccine mandates.
Second, businesses that are places of public accommodation, including hotels, theaters and restaurants, must adhere to the limitations outlined in Title II of the Civil Rights Act of 1964. As stated above, this includes being prohibited to discriminate based on a person’s religion.
Lastly, businesses must adhere to the ADA by making necessary accommodations for people with disabilities. This may include those whose doctors have advised them not to receive the COVID-19 vaccine because of other conditions.
Companies do have a lot of freedom in regard to whom they permit entry to, however as the above laws are open to some degree of subjective interpretation, this also leaves them vulnerable to discrimination lawsuits for prohibiting entry to individuals based on their vaccine status. Many medical ethicists predict that lawsuits of this nature will become common.
Can institutes of higher education implement vaccine requirements?
Much like employers, institutes of higher education, including both state and private colleges and institutions, can implement vaccine requirements. Many schools presently require rubella, chickenpox and measles vaccines, while health care education programs require additional vaccines, such as flu and hepatitis B, before beginning clinical rotations. It stands to reason that the COVID-19 vaccine will be added to this list of requirements, but many factors, including availability of the vaccine, may affect an institution’s ability to mandate it.
“It remains to be seen exactly how the COVID-19 vaccine requirement will be implemented in higher education,” explains Donna Meyer, chief executive officer of the Organization for Associate Degree Nurses (OADN) and member of the IDC. “The Biden Administration’s National Strategy for the COVID-19 Response and Pandemic Preparedness encourages states to leverage students to surge their vaccinator workforce. OADN believes that this is one important strategy toward achieving the administration’s vaccination goals and ensuring vaccine equity.”
Much as with the discussion of vaccine requirements within an employment setting, education administrators must work to ensure students who cannot receive a vaccine for the legally permitted reasons are not denied the same educational opportunities as those who are. Students who cannot receive a vaccine must be assured as clear a route forward as those who can. For students, this is imperative, as assuring they have an equal opportunity education enables their career path forward.
Written by the Infectious Disease Council