TThe COVID-19 pandemic is not over yet for the US, but the Delta variant means the “war has changed,” as leaked CDC slides made clear. The development and production of COVID-19 vaccines is an achievement on the order of the Manhattan Project, but until the U.S. public is vaccinated, infections, hospitalizations, and deaths are likely to increase across much of the country. After an impressive introduction, our vaccination rates have stalled. Canada, which faced challenges early on in getting enough doses and therefore started later than the US, had outperformed the US on both first dose and full vaccination in mid-July and is going into August much better equipped to face Delta .
Faced with these challenges, the Biden White House and the country’s public health infrastructure are struggling to drive up vaccination rates. The result was a slow embrace of a word that previously seemed like political kryptonite: “mandates”. Last week, President Biden announced the federal government would require federal employees to be vaccinated against the coronavirus or to comply with the rules for masking, distancing, weekly testing and other health measures. Big companies like Google, Facebook and Lyft also require vaccinations for their employees. Many universities have already made vaccination compulsory unless a religious or medical exemption is granted. In fact, 47% of ABA accredited law schools have already done so, and the more Delta news comes, the more companies and institutions should join.
One thing that held some employers and universities back was whether such mandates are legal – the Houston Methodist Hospital faced a lawsuit from over 100 workers who refused to be vaccinated. Some University of Indiana students challenged the school’s mandate as unconstitutional. But while every lawyer learns to write “it is complicated” and “it depends” (more on this below) advice, the past few weeks have brought assurance that such mandates can be legitimately given, a claim the legal experts say ask for months.
Indeed, compulsory vaccination has a long history in the United States. Indeed, at the turn of the 20th, instead of denying that the state can impose vaccination requirements, what the US Supreme Court upheld in 1905 required, those conflicting mandates focused on the fact that the current COVID-19 vaccines were used as part of Emergency Use Authorization (EUA) from the FDA. Process and not yet approved as a full license application for biologics (BLA). That could change soon as the FDA could give Pfizer’s vaccine BLA approval. In this case this argument would be omitted. In any event, the first court to rule on this, the US District Court for the Southern District of Texas, decidedly rejected the “EUA = no mandate” position in the Houston Methodist Case. It stated that the EEA Statute “neither extends nor restricts the responsibilities of private employers; for private employers like the hospital it doesn’t apply in this case. ”The court also rejected the claim that it was human experimentation or coercion.
That conclusion was reinforced by the release of a memo from the US Department of Justice’s Office of Legal Counsel (full disclosure in a pre-academic life where I was an attorney for the DOJ) asking for the President to consider whether the law would allow it Require an EUA approved vaccine and have not yet received a BLA. The memo comes to the decisive conclusion that the relevant provision of the EEA statute “only concerns the provision of information to potential vaccine recipients and does not prohibit public or private institutions from imposing vaccination obligations on vaccines that are subject to EEA”. While this finding is not binding on the courts, its excellent analysis should be convincing and show the executive branch’s views on the matter.
But what about government institutions like public universities or government agencies? Those who reject vaccine mandates can assert constitutional claims against them because they are “state actors”. In the first major analysis of the issue on July 18, 2021, the U.S. District Court for the Northern District of Indiana denied such a challenge to Indiana University’s vaccine mandate in a thorough, 101-page statement from a judge appointed by President Trump. The statement was respectful and took the students’ allegations seriously, but ultimately denied them, writing:
This university policy is not a forced vaccination. Students have the choice between vaccination, religious exemption, doctor’s exemption, deferral, a semester of leave or studying at another university. This policy applies to the fall semester 2021 only. Students can make their choices after being informed about the risks and benefits of the vaccines and giving their consent. The court recognizes that for certain students this can be a difficult but nonetheless a decision. The choice is not so compelling that it does irreparable damage to the constitution. Although it turns out to be a requirement to attend this fall, it is constitutional to do so.
These court decisions pave the way for vaccine mandates that are well connected to public health and include religious and disability-related exceptions and precautions. But in true legal fashion, there is an “it depends”. All previous cases have centered on allegations that mandates violate federal law, but much of the judiciary that guides our lives is state law. While in my opinion and the courts nothing so far prohibits mandates in federal law, at least currently no mandates are required for non-federal employees, so that states can try to prevent employers or universities from granting such mandates. Several states have passed or introduced bills that prohibit employers or universities from requiring vaccinations or allowing the use of vaccination records.
The details vary and are important – some apply only to public entities, for example not private ones – but if a state has a valid ban on vaccination mandates, employers or universities can be prohibited from issuing those mandates. For example, in Florida, the government has passed bill stating that companies “cannot require customers or customers to provide documentation certifying COVID-19 vaccination or recovery from infection in order to access, access or provide services from business operations ”. in this state ”, with similar provisions for government and educational institutions. This means these facilities cannot require proof of vaccination, which thwarts any attempt at vaccination mandates, even though some in the state have already tried to defy the law. In Texas, a recently passed state law prevents public, but not private, universities from requiring vaccination. These strange patchworks will unfortunately continue to exist because in the absence of federal law to the contrary that mandates vaccine mandates or permits vaccine verifications or otherwise anticipates state law in the region, state law will prevail. So far the federal government has made no move to pass such a contradicting law, and given the current composition of Congress, any attempt appears to be unsuccessful. Predictably, but tragically, many of the states that have been most actively trying to prevent mandates are also places where vaccinations are lowest and Delta is the greatest threat.
Even where the law clearly allows vaccination orders, there are many things that can hold back an employer or university. How will students or customers react? Are you in a tight market where you could lose employees to competitors? We have already seen mixed reactions from unions. In a way, it should be. As with all public health interventions, mandates should be carefully aligned with the facts on the ground, including vaccination rates and delta spread. But the recent legal rulings and the presidential nudge will hopefully free us to have this data-driven conversation outside of the shadow of the threat of lawsuits.
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