The U.S. has reached a worrying plateau in its COVID-19 vaccination coverage, with just half of the population fully vaccinated. This coincides with pandemic fatigue, or weak compliance with COVID-19 risk-mitigation measures such as masking and distancing, and the highly infectious Delta variant, which accounts for more than 83 percent of infections. We’re at an inflection point in the pandemic, with coronavirus infections soaring by about 140 percent in the past two weeks.
Reflecting deep concern over lagging vaccinations, the Biden administration recently mandated vaccinations for all federal workers and contractors (with masking and regular testing as an alternative option), while the Department of Veterans Affairs issued mandates for all frontline health workers at its facilities. President Joe Biden also ordered the military to move toward compulsory vaccinations.
California, New York City and New York State are leading the way in requiring that government workers get vaccinated or else submit to weekly testing. And New York City just announced its “Key to NYC Pass,” requiring proof of vaccination for access to most indoor activities, including gyms, restaurants and performances, beginning on September 13—the first policy of its kind in the U.S. Meanwhile more hospitals and long-term care facilities are implementing mandates following a joint statement from 100 medical and nursing groups urging compulsory vaccinations. And when schools of higher education return in the fall, nearly 600 colleges and universities will require vaccination. That’s true in the private sector as well as a rising tide of businesses—including Uber, Facebook, Google, Netflix and Delta Air Lines—mandate vaccinations for workers.
Are these mandates lawful and ethical? The short answer is emphatically yes. And there is strong behavioral science evidence that mandates will be highly effective.
The Lawfulness of COVID-19 Mandates
Businesses: Both the Department of Justice and the Equal Employment Opportunity Commission (EEOC) have ruled that businesses may lawfully require workers to get a COVID-19 vaccine as a condition of coming to the workplace. However, businesses must grant legitimate medical or religious exemptions. The only major court ruling to date upheld Houston Methodist Hospital’s COVID-19 vaccine mandate. The private sector has wide discretion in setting conditions for workers and customers, and businesses have a legal and ethical duty to keep the workplace safe.
Currently all COVID-19 vaccines are administered under an emergency use authorization (EUA) and are not fully licensed. The DOJ and EEOC specifically stated that employer mandates may occur even under an EUA. The U.S. is already acting as if the vaccines were fully approved, with public health agencies recommending that all eligible Americans get a shot. In any event, the Food and Drug Administration recently announced it is expediting full licensure of the Pfizer vaccine, which is likely to occur by September, with other vaccines not far behind. When the FDA does approve COVID-19 vaccines, more businesses are likely to require immunizations.
Federal and state governments: States have long had the constitutional authority to mandate vaccinations, which the Supreme Court has upheld twice, first in 1905 and then in 1922. The federal government, however, has limited power to mandate vaccines. It can only require them to prevent transmission of a dangerous infectious disease across state lines or international borders. The federal government has never sought to require nationwide vaccinations, and the courts probably would not allow it. To date, all state government mandates have been for fully approved vaccines. Thus, it is likely cities and states would wait to mandate COVID-19 vaccines until they are fully licensed. But when governments act as employers, they would be in a similar legal position as businesses. Thus, federal and state worker COVID-19 vaccine mandates are fully lawful even under an EUA.
K–12 schools: Every state and Washington, D.C., require routine vaccinations, such as for measles, mumps and rubella, as a condition of school attendance. While state mandates vary, all are based on a long list of childhood vaccinations recommended by the Centers for Disease Control and Prevention. In 1922 the Supreme Court upheld school mandates, and all courts have recognized the states’ authority to mandate fully approved vaccines. Schools must offer medical exemptions for those who may be harmed by vaccines, but they do not have to grant religious or conscientious objections. Six states offer neither personal nor religious exemptions for school mandates, a move that the courts have upheld. Because K–12 COVID-19 mandates would be issued directly by the government, they are likely to require full FDA licensure. Further, the FDA’s EUA for Pfizer’s COVID vaccine currently applies only to people aged 12 years and older, and the other two COVID vaccine EUAs are only for adults. Clinical trials for children younger than 12 years old are currently underway but may not report full results until late this year or early 2022.
Institutions of higher education (IHEs): In most respects, IHEs are in a similar position to businesses. IHEs have long required vaccinations of students—for human papillomavirus, meningococcus and influenza, for example. A federal court has already ruled that Indiana University’s COVID-19 mandate is a reasonable, science-based measure to ensure student health and safety. And the U.S. Court of Appeals for the Seventh Circuit just affirmed that Indiana University’s mandate was lawful. IHEs act in loco parentis and thus have a duty to care for the safety and security of students on campus. While most IHE COVID-19 mandates apply to students, many also apply to faculty and staff.
While there is a rising tide of governments, businesses and IHEs mandating COVID-19 vaccines, some states are actually seeking to restrict vaccine mandates. More than a dozen states have enacted laws prohibiting mandatory COVID-19 vaccinations or even “proof of vaccination” (so-called vaccine passports). Many more have bills pending. A number of governors have issued executive orders prohibiting COVID-19 vaccine mandates or vaccine passports. These edicts restrict private businesses, schools and IHEs from asking for proof of vaccination. COVID-19 has been politicized like no virus before. From AIDS and tuberculosis to Zika, influenza and Ebola, states previously acted to enhance public health powers. A multitude of states are doing the opposite during this pandemic, tying the hands of health officials to act quickly and decisively. That will not only make it harder to fight COVID-19 but also the next health crisis.
States have wide powers to regulate businesses, so even if these laws and executive orders are harmful, they still may be lawful. The exception may be states’ attempts to regulate businesses that operate in interstate or international commerce. There is litigation regarding Florida’s attempt to ban the cruise ship industry from requiring passengers and crew to show their vaccination status. Recently a federal court of appeals unanimously voted against a CDC order regulating cruise ships, which Florida had challenged. It was a bizarre case because the decision reversed the appeals panel’s earlier 2-1 ruling, which temporarily blocked a lower court’s decision to uphold Florida’s ban, and the appeals court has yet to give its reasoning for the change. The Constitution is quite clear that Congress holds the sole power to regulate interstate and international commerce.
Are Vaccine Mandates Effective?
There is considerable behavioral scientific data that vaccine mandates are effective. That includes both “hard” mandates (required vaccinations for school or workplace attendance) and “soft” mandates (the choice to vaccinate or undergo regular testing and indoor masking). Hospitals that have required influenza vaccinations have achieved and maintained far higher coverage than those that make it voluntary. At the same time, K–12 school and IHE mandates have given the U.S. high vaccination rates.
Many business and educational mandates fall into the “hard” category—that is, students or workers cannot attend classes or the workplace unless they are fully vaccinated. “Soft” mandates “nudge” people to get vaccinated. When getting a vaccine is the “easier” or “default” option, most opt for the jab. Thus, when given the choice between getting a vaccine or having to undergo one to two SARS-CoV-2 tests weekly and masking up, most people will eventually roll up their sleeves. How do we know? Well, in states that have wide and easy exemptions for childhood vaccines, a significant number of parents opt out. But if a state makes getting the exemption hard, such as requiring a written declaration, a doctor’s certificate or attending vaccine literacy classes, vaccine hesitancy melts away. The same will happen for COVID-19 vaccinations.
Are COVID-19 Vaccine Mandates Ethical?
People cite bodily integrity, personal liberty and freedom as the most common justifications for refusing vaccines. But these arguments don’t hold water. It’s true that everyone has the right to refuse a medical intervention for their own good. But vaccines not only protect the person vaccinated but also that person’s family, neighbors, and classmates or co-workers. No one has the right to go into a crowded classroom or workplace unmasked and unvaccinated. Vaccine mandates do not unethically discriminate. Discrimination is wrong when it is based on irrational reasons or animus, such as discrimination based on race, gender or disability. But vaccine mandates are simply a tool, and they apply equally to everyone. They don’t impute blame or seek to shame the unvaccinated. They are intended only to keep the entire population safe. Finally, requiring proof of vaccination does not violate a person’s privacy. Individuals are free to decline to give information about whether they received a shot, but if they do decline, they must expect reasonable consequences to ensure everyone’s health. Additionally, federal health information privacy rules apply principally to health care providers and not to businesses or schools. There is also a public health exception to privacy rules.
Requiring people to get a vaccine is part of the fabric of American history going back to the Revolutionary War. General George Washington compelled troops to get a smallpox variolation, saying it was necessary to safeguard soldiers and to win the war. And not only is mandating vaccination lawful, but it is also an ethical responsibility. For far too long, Americans have asked the question, “What entitlements do I have as a rights-bearing citizen?” It’s now time to ask, “What duties do I owe to my neighbors, my community and my country?” Getting a COVID-19 vaccine as the nation and the world are undergoing a historic health crisis is badly needed for the common good and mutual solidarity.