Mandatory COVID Vaccination: Is it Coming and Is it Legal?

Mandatory COVID Vaccination: Is it Coming and Is it Legal?

OK, it’s time to get into it: This will be a neutral overview to give a basic understanding of the law based on three critical distinctions: federal vs. state, EUA vs. vaccine licensure, and state vs. private party.

The Feds vs. the State (and counties and municipalities)

Question: Since Joe Biden has already said he doesn’t think the vaccine should be mandatory, doesn’t that end the discussion?

Answer: Unfortunately not, because of relevant legal principle No. 1.  Public health mandates emanate from the government’s police power, and that is mostly a state law concept. There is no general federal police power. Whatever power the feds have to regulate things come from other powers specified in the Constitution like the power to regulate interstate commerce which comes from the commerce clause. This principle was first articulated almost two hundred years ago in Gibbons v Nash.  For the legally inclined, here is the decision. https://scholar.google.com/scholar_case?case=1173503503763993716&q=Gibbons+v.+Ogden&hl=en&as_sdt=6,33.  For everyone else, here is Chief Justice Marshall’s description of the state’s police powers meaning  that “immense mass of legislation,” as he put it, “which embraces everything within the territory of a State, not surrendered to the federal government,” includes “quarantine laws” and “health laws of every description.”

The Bottom line, as powerful as he may be when he becomes president, I don’t think he has the power to keep the COVID vaccine voluntary.  Similarly, if he were to change his mind, I don’t think he (or Congress) has the right to make it fully mandatory, at least for citizens who do not cross state lines. Since the feds regulate interstate commerce, if the federal government was so inclined, I suppose it could require the vaccine for interstate travel. While that might be subject to constitutional attack, I think it would at least be arguably within their powers under the commerce clause to do it. Again, leaving aside the issue about whether it would violate another constitutional right (like the right to bodily integrity or privacy). Also, the commerce clause sometimes gets stretched pretty far, so if for example, the pandemic took a really ugly turn, who knows what the feds could try to do.

In support of this view -of the state-based police power and the right to mandate vaccines – think about every case you can recall on vaccine mandates. Every single one I can think of which was filed in federal court dealt with a municipal or state mandate.

The bottom line for me is that I don’t think that the federal government can order that the COVID vaccine be voluntary or mandate that every resident of every state must take it.

State vs. Private Party mandates

The simple of it is that the relevant constitutional rights and protections only restrict governmental action. Originally, these protections (the first 10 Amendments) only applied to and limited the Federal government. The 14th Amendment made the protections afforded by the earlier amendments applicable to the states.

That means that an employee of a private company can’t sue her employer for a violation of her federal constitutional rights like the right to bodily integrity/privacy. That’s just not a thing. However, there are various federal and state statutes that accord some of the same protections, like unlawful employment or housing discrimination and disability-based discrimination.

It is black-letter Federal employment law that while an employer can mandate its employees to take a vaccine, employers are required to offer a “reasonable accommodation” if feasible, on religious and disability grounds. That happens a lot in the flu vaccine context and usually takes the form of a mask requirement (prior to the pandemic anyway). Of course, as a result of the pandemic, some health care facilities have eliminated that accommodation.  I am not aware of any successful lawsuits challenging a private employer’s vaccine mandate in the pandemic time frame. I suspect there might be some litigation that will challenge an employer’s finding that a reasonable accommodation cannot be made for empolyee health reasons.

Emergency Use Authorization vs. Full Vaccine Licensure: Can the State or a private party  (private school or non-government employer) force people to take the COVID vaccine?

I have previously posted about EUA. https://wp.me/p7pwQD-PB

In short, a product approved by the FDA under EUA is still investigational and not approved under a New Drug Application or licensed as a biologic (as in the case of vaccines).

Let’s start with the relatively straightforward question of whether after COVID vaccines are licensed, can they be made mandatory?

Right now, I’d have to say yes, both for government and private employers, at least based on existing precedent, starting with Jacobson.  Government employees can raise constitutional claims, private party employees cannot. All employees have accommodations for religious and disability. But contrary to what some have said, these are accommodations not exemptions. The accommodation (at least in the case of the flu shot) is a mask. However, the employer has the right to claim that an accommodation cannot safely or practically be made. It wouldn’t surprise me if some employers take that position if the pandemic continues after the vaccines are licensed.  The above is the status of the current law.

Can the law change? Possibly, and I predict there will be such challenges which attempt to distinguish Jacobson and the smallpox vaccine (which had been used for over 120 years by the time Jacobson was decided) from the current situation and a newly approved COVID vaccine which I assume will have thousands of documented and publicized adverse events and is based on a new technology which appears to modify a person’s genetic material (or so I am told).

What about the Nurenberg Code, the Helsinki thing, and all the other international proclamations covering human experimentation? Can’t they be used to stop my employer from forcing me to get a Covid vaccine? 

None of these codes have the force of law in the US, and I am not aware of a US decision that reached a result based on any of these codes. Could a court look to one of these codes for guidance in a newly licensed COVID vaccine? Possibly. Will that be argued in challenges to the licensed vaccine if it is mandated? Absolutely.

Now let’s consider legal challenges to a mandatory EUA status vaccine

There are informal indications that the feds do not think a EUA product should be mandatory, but as indicated above, mandatory vaccination is almost exclusively a matter for state or local governments (or private employers). I am already hearing rumblings that some private employers are considering mandating the COVID vaccine, and not necessarily after they are fully licensed.  That situation would directly implicate the Nurenberg code and the other doctrines, but as stated, none of these have the force of law, until there is a US decision rejecting a EUA mandatory vaccination policy, all or in part based on these international codes.

If you live in California, you’re in luck, because California has actually formally codified the Nuremberg Code into its state law. Here it is: http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=20.&title=&part=&chapter=1.3.&article

The statute would seem to apply to an investigational drug or vaccine, even one with EUA status, but there is no relevant case law yet. This is where I see the next vaccine battle in California for sure. I also see legal challenges in New York if a governmental entity or an employer attempts to force citizens or employees to take the EUA vaccine.   However, given the short supply of the vaccine, I don’t think the issue will come up until late spring at the earliest. Let’s hope not anyway. Until then, let’s see how the safety and AE profile plays out in the next few months.

Happy holidays to all.

Rick Jaffe, Esq.

 

 

 

 

 

 

 

 

4 thoughts on “Mandatory COVID Vaccination: Is it Coming and Is it Legal?

  1. Jacobson v. Massachusetts didn’t allow for mandatory vaccination as Jacobson wasn’t vaccinated as a result of it. The case only allowed for a $5 fine in lieu of vaccination, meaning his right to bodily autonomy was intact: liberty for a fee. More at https://www.nvic.org/nvic-vaccine-news/november-2016/forced-vaccination-the-tragic-legacy.aspx.
    I don’t agree with the principle of stare decisis, started with this US Supreme Court’s self-appointed authority in Marbury v. Madison (1803). Each set of circumstances is unique which a jury should have the opportunity to deliberate. For those who disagree and who misinterpret Jacobson v. Massachusetts or even expand its meaning to other areas, like mandated mask-wearing, should be informed of:
    • Miller v. US (1939), 230 F 486, 489, excerpt: “There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.”
    • Miranda v. Arizona (1966), 384 US 436, 491, excerpt: “The claim and exercise of a constitutional right cannot be converted into a crime.”
    • And more at voidjudgements.net/suedc/constitutionalcaselaw.pdf.

  2. The UC has already drafted an interim policy like they are trying to test the waters. They really should just offer the vaccine to employees after seeing who is interested like they do in the real world outside and let people opt in with informed consent rather than their heavy handed approach that reeks of legal issues: https://ucop.edu/uc-health/_files/covid-19-vaccine-policy.pdf
    It does not mandate the vaccine, but mandatory participation in the program of making a choice to get the vaccine or not, and sign your name affirming if you do not. “The policy requires all University of California personnel and certain trainees working or learning on-site to participate in education about the SARS-CoV-2 vaccines that will be available and either consent to administration of the vaccine or affirmatively opt out of SARS CoV-2 vaccination.”

    In section III, A-3a of the policy they blatantly say that if you decline the vaccine your name may be provided to supervisors or managers to make sure any safety measure might be taken. While that sounds great on paper, it misses that medical information is protected, private and confidential, unless the person wishes to authorize the disclosure of their medical records. The current measures take into account that nobody knows anyway so there isn’t any just cause to disclose or share that information. And after the pandemic is over and herd immunity has been reached it’s pretty much assured that COVID is out there now and is now a part of everything people are regularly exposed to, and it becomes the individual’s responsibility to work with their own medical professional or not and make a decision based on their personal risk factors, though certain rules may already apply to health care services employees.

    The supporting links to their documentation about the Moderna and Pfizer vaccine literally say it is an emergency use vaccine but is unapproved or experimental. That would seem to make it fall into the category of “human experimentation” as an experimental drug, which goes back to voluntary participation and informed consent. The way the UC words it leaves the research up to each person, but still forces participation in a program that you must decline, accept or there may be consequences. There are enough people that would come with an offer rather than the bullying and and fear that will always backfire.

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