TAMPA, Fla. — As businesses like Delta Airlines and governments like the City of Tampa begin to implement strong vaccine mandates, questions surrounding those mandates continue to be asked including the legality of such a measure.
Are vaccine mandates legal?
It depends on who is issuing the mandate. The federal government has never issued a nationwide vaccine mandate, according to Scientific American. Instead, the decision-making has been largely left to the states. And according to the United States Supreme Court, yes.
The Supreme Court’s main ruling on vaccine mandates came in 1905, though the court also declined to hear a case recently on the subject. In 1905, the Supreme Court heard the case of Jacobson vs Commonwealth of Massachusetts. The case surrounded a Massachusetts law that allowed cities to impose smallpox vaccine mandates. Jacobson sued after being fined for breaking the law. The Court, in a 7-2 decision, said the Massachusetts law was Constitutional and added it “is within the police power of a State to enact a compulsory vaccination law” and for the legislature to determine
if vaccination is the best mode to prevent smallpox “and the protection of the public health.” The Court later said in Zucht vs. King, 1922, that the Jacobson case and others had settled the question of whether a state, consistent with the U.S. Constitution, may “delegate to a municipality authority to determine under what conditions health regulations shall become operative.”
The most recent case coming before the Supreme Court on vaccine mandates was on August 12. Justice Amy Coney Barret declined a request from eight students at Indiana University who sued over the school’s policy that students must be vaccinated. Justice Barrett turned down the request for emergency relief without comment and did so without referring the matter to the full court. The students lost at every level of court in their push to overturn IU’s mandate. One of the appeals court judges relied on the decision in Jacobson in his opinion, according to the New York Times.
Can businesses implement vaccine mandates?
Businesses have wide leeway to enact vaccine mandates. Both the Department of Justice and the Equal Employment Opportunity Commission have weighed in on the subject this year and said businesses can require employees to get vaccinated, with some exceptions.
Specifically, the Justice Department said Section 564 of the Food, Drug, and Cosmetic Act does not prevent businesses from implementing vaccine mandates, even when the vaccine is under Emergency Use Authorization from the Food and Drug Administration. At the time of the Justice Department's opinion, all three COVID-19 vaccines were under EUA. However, this week, the Pfizer vaccine was given full authorization by the FDA.
The EEOC said federal equal employment opportunity laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title IVV and the ADA and other EEO considerations.” The EEOC did say numerous exceptions can apply to any vaccine mandate from an employer, along with other restrictions listed by the EEOC in the guidance on its site.
“There is a limited exception for that very small universe of people who have health conditions where the vaccine is not appropriate. In those instances there may be reasonable accommodations available," said Ryan Barack, a Board Certified Labor and Employment Lawyer.
It should be noted that collective bargaining agreements can play a role in the application of vaccine mandates. CBAs may limit some vaccine mandates, but according to CNN, “those don’t stop employers from implementing vaccine mandates on new or non-unionized employees.” This played out in real-time on Wednesday as the city of Tampa said it would have to negotiate the new vaccine mandate in the city with the police, fire, and other unions in the city.
What about Florida and vaccine mandates in the state?
As noted above, states have leeway from the Supreme Court to implement vaccine mandates. The state of Florida already mandates many vaccines in school-age children, though some exceptions do apply even in those circumstances. While six states have enacted bans on COVID-19 vaccine mandates for employers and schools, Florida is not one of them. Florida does have a ban on COVID-19 vaccine mandates for schools.
Governor Ron DeSantis has repeatedly said he would not be imposing restrictions on businesses from implementing policies, including mask or vaccine mandates, they see fit. Many private businesses across the country have announced vaccine mandates including Google, Netflix, Morgan Staley, and others.
"In terms of an employment context, that's a totally different thinkg than a vaccine passport," DeSantis said during a press conference in May 2021. "I don't support mandates either way for employers with that but that's a separate thing. There's a lot of body of law with that."
Does HIPAA prevent my employer from legally being able to ask me for vaccine proof?
“HIPAA has no applicability on this at all. Employers can require proof of vaccination, and HIPAA has nothing to do with it," said Barack.
He adds if a business plans to keep those vaccination documents on file, they should treat them the same way they treat other confidential health information. He says that might mean placing that information in a separate file but that doesn't mean an employer can't ask for it and keep it.
Can sub-contractors be mandated?
Yes. Companies can require that sub contractors have their representatives be vaccinated. The requirement for having people being vaccinated is not dependent on an employee/employer relationship.
"Just because someone is a sub contractor, as part of the sub contractor relationship, you can require that the subcontractors be vaccinated" said Barack.
Are there alternatives to mandates?
Some businesses are using incentives or penalties to try and increase their vaccination rates. Delta Airlines was the latest to announce such a policy Wednesday when the company said it would add a $200 monthly surcharge to employee’s insurance costs if they remain unvaccinated. This has been done at a local level of government too with states and cities offering cash incentives or holding drawings for larger prizes when people get vaccinated. Governor DeSantis has repeatedly said he would not offer any incentives for vaccination in Florida.
What about “vaccine passports?”
While Florida doesn’t limit businesses from mandating vaccines for their employees, the state does ban businesses from asking for proof of vaccination from customers. This has been enacted in other states as well and earned proof of vaccination the moniker of “vaccine passports.” Florida’s ban on proof of vaccination is currently on hold while a legal battle over them is fought between the state and Royal Caribbean Cruise Lines. Until the courts render a final verdict on “vaccine passports,” the issue remains in question.
Are there any legal challenges remaining to vaccine mandates?
The largest recent challenge to COVID-19 vaccine mandates has come from Texas. Houston Methodist Hospital introduced a COVID-19 vaccine mandate for employees. A group of more than 50 employees refused to get the COVID-19 vaccine and were subsequently terminated. The group filed suit and lost at the district court level. The case remains active on appeal.
The Associated Press; ABC News; The U.S. Department of Justice; The U.S. Equal Employment Opportunity Commission; Scientific American; the New York Times; Jacobson v. Commonwealth of Massachusetts case; Zucht vs. King case