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Despite this positive news, there are several concerns about these vaccines. 

Some individuals object to using vaccines through deeply held religious beliefs. Others are concerned about potential health consequences from a vaccine that has not faced long-term testing.

These concerns have led some to question whether a vaccine mandate might be a possibility. There are significant constitutional questions that would come with a potential vaccine mandate. Given the short timeframe it might take for a mandate to materialize, Americans need to understand their rights related to a vaccine mandate.

How Would a Vaccine Mandate Work?

It is important to remember that a potential vaccine mandate might never be required for the entire population. Other options could be available outside a blanket vaccine mandate as well. In fact, Dr. Anthony Fauci of the National Institute of Allergy and Infectious Diseases has said he would be surprised if any part of the population faced a national mandate.

While that could ultimately be the case, another form of vaccine mandate might be more likely. Known as “if/then” mandates, this option could make COVID-19 vaccination optional in general. However, certain activities might not be allowed without first receiving the vaccination. For example, requiring vaccination for governmental jobs like police officers or prison staff would be a mandate of sorts.

This type of mandate could also apply to certain types of gatherings. Anything from sporting events to air travel might not be possible without proof of vaccination. States might also require quarantine for anyone traveling from out of state without proof of vaccination.

Another possible approach could involve a vaccine mandate for specific at-risk populations, which could affect nursing home staff and residents, for example.

Are Government Vaccine Mandates Constitutional?

The constitutionality of a vaccine mandate is not a new question. In fact, the United States Supreme Court first took up the issue in a 1905 case known as Jacobson vs. Massachusetts. Since this decision, the high court has never found a vaccine mandate to be unconstitutional.

Jacobson v. Massachusetts

In 1905, Massachusetts was one of only eleven states with compulsory vaccination laws. The state allowed city boards of health to implement mandatory vaccinations for adults, which many cities chose to do following a smallpox outbreak. Those adults who failed to comply faced a monetary fine.

The case stems from a challenge by Massachusetts Pastor Henning Jacobson, who refused the vaccine. Jacobson cited previous bad reactions to smallpox vaccines and alleged that he could be predisposed to adverse reactions if forced to vaccinate again. Jacobson argued that vaccine mandates are arbitrary, oppressive, and an invasion of his liberty.

The Supreme Court disagreed. In a 7-2 decision, the court found that vaccination mandates are part of the government’s lawful police powers. This power is not limitless, though. The court also found that vaccine mandates are constitutional so long as they:

• Are not arbitrary
• Are not unreasonable
• Do not go “far beyond” what is required for public safety.

To date, no challenge to a vaccine mandate has ever established an example of going far beyond what is required.

Does Prior Law Apply to COVID-19 Vaccines?

It is impossible to say whether Jacobson vs. Massachusetts would clear the way for a COVID-19 vaccine mandate, as the mandate does not exist yet. However, the law is clear that a mandate would likely be constitutional if it meets the requirements outlined in Jacobson.

The specific language of the mandate would ultimately determine whether it survives constitutional scrutiny. Given the long history of the court upholding these mandates, the chances are strong that it would do the same for a COVID-19 vaccination so long as it did not go “far beyond” what is necessary to uphold public safety.

Potential Challenges to a COVID-19 Vaccine

There are numerous grounds an individual might use to challenge a proposed COVID-19 vaccine. Unfortunately, the court has rejected each of these grounds in challenges to other city or state vaccine mandates.

Due Process

A common refrain among those opposed to vaccination mandates is that these laws violate the Due Process Clause of the 5th and 14th Amendments. These clauses protect citizens from the government arbitrarily depriving them of life, liberty, or property. Some claim that unwanted medical treatment is a deprivation of liberty that violations the Due Process Clause. However, the United States Supreme Court has previously rejected this argument. The court must weigh the deprivation of liberty against the state interest of promoting and protecting public health. To date, the court has not ruled private liberty to outweigh the public need for a vaccine mandate.

Free Exercise of Religion

Another common objection to vaccine mandates involves the free exercise of religion. The Free Exercise Clause of the First Amendment prohibits Congress from making a law that prohibits the free exercise of religion. Some challenges to mandatory vaccine laws allege they interfere with the rights of those whose religious beliefs prohibit vaccines. However, the Supreme Court first denied a claim based on the Free Exercise clause more than 50 years ago, holding that “the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

Equal Protection

The Equal Protection Clause of the 14th Amendment is another commonly-cited argument against mandatory vaccination. This clause prevents states from denying anyone within their border equal protection under the law. In other words, similarly-situated people should be treated equally. While the argument is that those with compromised immunity could face discrimination if forced to be vaccinated, states typically provide exceptions for those who are too immunocompromised to be vaccinated. What’s more, the court has also found that “vaccination status” does not raise equal protection issues that exist with protected classes.

Employer Mandates

Most of the discussion surrounding vaccine mandates involves state, federal, or local government actors. The reality is that most vaccine mandates will likely come at the hands of employers. An employer’s ability to require vaccination among its employees is significantly different from the powers of the government.

However, there are many circumstances where an employer could mandate a vaccine as a requirement of continued employment. In fact, the general rule is that an employer may require vaccination under the law. This rule was established through guidance from the Occupational Safety and Health Administration (OSHA) in 2009. The right to require vaccinations also comes with requirements that employers inform their employees on the vaccine’s effectiveness and safety. There are also important exceptions to this requirement related to an employee’s religious beliefs or medical history.

Religious Exceptions

One of the most commonly-raised exceptions to employer vaccine mandates involves a person’s deeply-held religious belief. The specific rights enjoyed by an employee will depend on the nature of their employment. This religious exception stems from Title VII of the Civil Rights Act, which only applies to employers with at least 15 employees. Those employed by smaller businesses might not have the same rights.

A religious exception is only possible for a person with a deeply-held religious belief that prevents vaccination. Courts typically take an employee’s word for it that their religious beliefs are deeply-held, although the employer can provide evidence to counter this presumption.

Even if the court finds the belief legitimate, an employer could still have the final say. Denying the religious exemption only applies in cases where the employer can show it would cause undue hardship at their business. Examples of undue hardship include significant monetary losses or harm to the stability of the employer’s workforce.

Medical Exceptions

There is also a medical exception that can apply to employer vaccination requirements. Many workers cite the Americans with Disabilities Act (ADA) as grounds for objecting to mandatory vaccination. It is the employee’s burden to establish that they suffer from a disability recognized by the ADA. Additionally, they must demonstrate that this disability requires that they do not take the vaccine for health reasons. Like with a religious exemption, an employer can also claim undue hardship for medical exceptions.

Discuss Your Rights With Marrone Law

To date, the federal government hasn’t instituted any vaccine mandates related to the COVID-19 virus. Only when a mandate is enacted could it be possible to understand its scope or legality. It is also entirely possible that the government will choose not to institute a mandate.

At the Marrone Law Firm, LLC, we are proud of our record of defending civil rights. Call us today to discuss your legal options and schedule your initial consultation.

At the Marrone Law Firm, LLC, we are proud of our record of defending civil rights. Call us today to discuss your legal options and schedule your initial consultation.

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