Can COVID Shots Be Made Mandatory?

YOUNGSTOWN, Ohio – Businesses want more workers vaccinated, both to keep operations running smoothly and to be able to say to the public, “It’s safe to do business here!”  How best to bring this about—with a carrot or a stick?  And if it’s the stick, how do you apply it legally?   To answer these questions, let’s first back up a bit.

Early in the pandemic when the Covid virus was not well understood, fear of the unknown transfixed everyone.  But we had to eat, had to seek healthcare, had to send out for our stuff… So, from the start, we asked our meatpackers, healthcare workers and Amazon drivers to soldier on through the uncertainty.  Many got sick.  (Some of them sued.)

After the mandatory shut down, it was hard to know how to begin to safely return to normal.  Would a vaccine ever be available?  How effective might it be?  Old people and folks with health problems were clearly at risk, but what was the danger to younger people?  If you recovered from Covid, were there any long-term consequences?

People weigh risks and make decisions every day, but the choices were not clear.  At the time, I wrote: “If you know about a risk and can reasonably evaluate it, you may well decide to accept it if the benefits are high enough.  However, you cannot ‘accept’ a risk you do not know about or one that you are not qualified to assess…”  Thus, then as now, we relied on the advice of experts.  But it was conflicting and confusing.  First it was “Don’t mask!” then it was, “You better wear one!”  Initially, the World Health Organization said one thing and then another.  

The worst part was that “expert” advise was both dispensed and evaluated through intensely partisan filters.  If President Trump’s advisers said it was white, the mainstream press claimed it was black.  Whom to believe?  It seemed to depend upon one’s life-narrative.  Interestingly, in the 2020 election, Trump won 19 of 20 states with the lowest vaccination rates, while Biden won in all 20 states with the highest ones.  I can’t help thinking in that regard that most of the “blue” states have much higher population densities and so folks are trained to accept government oversight and intense regulation of their lives (i.e., how can you live in NYC with 50 stories of people stacked on top of each other without rules governing every aspect of how they live, move, shop, build and recreate?)

The intense politization of what should have been an informed and respectful debate resulted in deep mistrust of the government vaccination policy in many parts of the country, roughly along the red state/blue state divide.  The Wall Street Journal reports 90 percent of Democrats have received at least one shot, as opposed to only 54 percent of Republicans.  In spite of the consternation, we finally coalesced around a set of prophylactic behaviors:  Wash your hands (‘till they bleed), stand six (not five or seven) feet apart, wear a mask, Plexiglass-up the universe and take certain vitamins.  A business owner can find some comfort in employing what the average person now recognizes as these standards of care.  (He/she can also know that in a lawsuit, it will be difficult to prove just where a customer or employee picked up the highly infectious bug.)

In Europe, there were also different philosophies regarding pandemic management.  Sweden pretty much ignored the virus, never closing its schools and giving advice, but not many hard mandates to its citizens.  As a result, it has lower death rates than many of its large neighbors, while doing much less damage to its economy.  It is curious the U.S., according to CNN, has 5 percent of the world’s population, but 25 percent of Covid cases.  Perhaps we do not have all the answers…

Now, just as we have become comfortable with that catechism of propitious actions, here comes the “Delta” variant, said to be 1,000 times more virulent than the original version of the bug.  And apparently fully vaccinated people can both get it (though most cases are non-symptomatic or mild) and spread it.  All the above leads us back to the first of our original questions:  carrot or stick?  

If the goal is to get jabs in arms, then one starts with the notion that people do not like to be told what to do.  In these intensely partisan times, people are ever-more suspicious of authority.  Many businesses, thus, have adopted a “catch more flies with honey than vinegar” approach.  The Big Three automakers, for instance, have not mandated shots, but recommended them.  Many unionized companies have worked with their unions to come up with joint recommendations.  As discussed, Sweden provided information and let its people make choices, ending up with a 70 percent vaccination rate.

Many companies offer employees incentives to become vaccinated. Walmart offered $150 and Cleveland Cliffs putt up $1,500 each, if at least 75 percent of them become vaccinated.

But can a company demand a worker receive the shot?  The short answer is yes—at least in states with “at will” employment laws, such as Ohio.  Two cases deserve mention. The first was decided by the U.S. Supreme Court over 100 years ago.  In 1905, Cambridge, Massachusetts, imposed a vaccination requirement after a smallpox outbreak.  Henning Jacobson had been given a vaccine for a different disease in Sweden before emigrating to America, from which he suffered a severe reaction.  As a result, he refused a shot in America and was fined.  He argued vaccination was an invasion of his liberty and the law was “unreasonable, arbitrary and oppressive.”  

The U.S. Supreme Court, upholding the law, stated, “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”  The Court did acknowledge that in “extreme cases,” for certain individuals “in a particular condition of … health,” the requirement of vaccination would be “cruel and inhuman[e],” in which case, courts would be empowered to interfere in order to “prevent wrong and oppression.” 

Thus, states have the ability to impose health and safety laws, including vaccination requirements, that are reasonable. California and NYC require workers to choose between vaccinations and weekly testing, the latter being a “reasonableness” the safety valve.  States imposing mandates also usually carve out exemptions for religious beliefs (required by the First Amendment) and existing health conditions (such as an allergy to shots).  Now that the FDA has finally approved the vaccines and their use is not under the “emergency use” regime, it is more difficult to argue a mandate is unreasonable.

At the federal level, the EEOC has stated federal law does not prevent employers from requiring vaccinations and the armed forces have mandated shots for troops.  Also, the VA has required vaccinations for all healthcare workers.  

Recently, President Biden has issued an Executive Order that all executive branch workers and federal contractors be vaccinated.  He also has had OSHA require all businesses with more than 100 employees be fully vaccinated or tested weekly.  This latter requirement is likely unconstitutional in that it treads upon states’ preemptive rights in health and safety matters.

The second case worth noting was recently decided by a federal judge in Texas.  Healthcare workers at Houston Methodist Hospital had been offered $500 to get vaccinated.  The ones who refused were suspended.  The court held that Texas law (as in Ohio) provides for “employment at will,” meaning that a business (assuming no union or employment contract) can fire a worker for any reason, except refusing to perform an illegal act.

To summarize, if the goal is to achieve a high vaccination rate, a business should first encourage and then incentivize workers to take their shots.   It would be well to offer weekly testing at company expense as an alternative.  In Ohio, a company, lacking a union or employment contract (assuming there is no discrimination) can fire a worker for any reason except refusal to perform an act against the law.  That reason can be refusal to get the jab.

Legal Strategies is sponsored content produced by Johnson & Johnson Law Firm in Canfield.

Copyright 2022 The Business Journal, Youngstown, Ohio.