A University of Virginia Law School professor predicts that as the delta variant of COVID-19 continues to spread and vaccines continue to receive approval from the FDA, states, schools and employers will make it harder to avoid vaccination.
Margaret Foster Riley has written and presented extensively on healthcare law, health disparities and chronic disease. In 2020, she was appointed to a new National Institutes of Health advisory committee on biotechnology.
With the approval on Monday of the Pfizer-BioNTech vaccine, Riley answered questions about how much leeway those hesitant to vaccinate will have, as well as the obstacles they may face.
1. The power of the state to impose vaccination has been used with caution. That could change with final FDA approvals.
Riley: Vaccination mandates are generally a power left to states – with a few exceptions, including the military, immigrants, and federal workers, who are subject to federal power and have more limited rights to refuse a vaccine. States have significant power to impose compulsory vaccinations if the public health need is sufficient. The control case is (again!) Jacobson v. Massachusetts, a 1905 Supreme Court opinion in which the court upheld the power of Massachusetts to require vaccination against smallpox during an epidemic in the state.
State power was only recently involved when warrants were issued by state universities and state-linked health systems or for people traveling within the state. This may change if the public health need becomes even more urgent. This may also change as more vaccines are granted FDA approval.
The power of the state is not without limits, of course. There must be a genuine public health need (as determined by the state), and today most courts would likely also recognize the need for an exemption for people who sustain bodily harm while being vaccinated. (although they may still be subject to some mitigation controls such as masking or frequent testing). While most COVID vaccination mandates also include religious exemptions, it is less clear that these would still be required.
2. Companies will increasingly link vaccination to employment.
Riley: Businesses may require proof of vaccination as a condition of entry to the premises. There are limits in the sense that the company cannot make this request in a discriminatory way against a protected class. So, for example, you could not target a specific ethnicity by requiring such proof. You may need to provide accommodations for people who can prove a relevant disability. The Americans with Disabilities Act (and the Rehabilitation Act in the case of government employees) likely requires this exception.
One of the most influential factors in the fight against vaccine hesitancy has been the action of employers. When you link immunization to livelihoods, more people pay attention. When Walmart and Disney imposed vaccination warrants, it had an impact. Recently, a health insurer made vaccination compulsory even for its teleworkers. And it has also helped demand vaccination for the entertainment people want to attend. New York has been a leader in this area and has been effective in getting people vaccinated.
3. The courts will continue to maintain vaccinations in higher education.
Riley: Colleges have both the right and the obligation to protect their students and employees and to adopt reasonable mitigation strategies. Outbreaks pose additional risks to college populations as residential life, classroom activities, and many extracurricular activities involve large numbers of people and multiple shared spaces. As long as mitigation strategies are reasonable and legally enforced, courts are likely to uphold them. In the context of COVID, vaccination and testing have been recommended by the CDC as the best mitigation strategies, with additional masking when the prevalence of the disease is high.
4. Requirements for K-12 vaccinations will likely depend on a combination of FDA approvals and a state’s overall health picture.
Riley: Primary and secondary education is compulsory, and that changes the calculation somewhat, even if in a worsening public health context, it is still possible to imagine COVID vaccine mandates for schoolchildren and employees. All states, after all, mandate childhood vaccines for school attendance. Again, FDA approvals (full approval is not expected for children for some time) may also make warrants more likely for this population. If the public health need requires compulsory vaccination, schools would likely have legal support for vaccination mandates.
5. Vaccination hesitation will continue due to ideological conflicts and misinformation.
Riley: Reluctance to vaccinate is unfortunately not new, so we have considerable experience in the search for public health cures. We also know that there are many reasons to be reluctant to vaccinate; some of them are ideological, others are misinformation or lack of information, a few situations involve religious beliefs and in many cases there is only inertia standing in the way. In the case of COVID vaccines, the situation is complicated by the (thankfully) rapid development of currently available vaccines, the FDA has yet to give full approval to all vaccines, and all aspects of COVID have been politicized. The speed and pervasiveness of social media also complicates matters. Since there are so many reasons to be reluctant to vaccinate, each reason must be addressed separately, and the White House COVID task force is attempting to do so. They sought out various thought leaders to educate people and even used a bus tour to reach more remote communities.
6. Full FDA approval, which should help combat vaccine hesitation, will have its pros and cons.
Riley: The fact that not all licensed vaccines have yet gained full FDA approval has certainly complicated the process. Part of it can be a pretext; some people who oppose vaccination are currently using it as a reason, but that may change once approval is obtained. But there is also a lot of confusion about the approval process and some of the early guidelines for emergency use permissions added to that confusion. Additionally, some people genuinely believe that they cannot be trusted with the safety of vaccines until full approval is cleared. Currently authorized vaccines have been very well studied and the risk of vaccination for all authorized populations appears to be much lower than the risks inherent in contracting COVID-19. In addition, safety is not the only consideration that the FDA must be concerned with in the approval process. Once vaccines have been fully approved, the FDA loses considerable power to dictate prescribing practices and require data submission.
7. The problem of fake immunization cards can be mitigated by confirmation technology – and the threat of federal fees.
Riley: Some states already have systems in place by which a vaccinated person can obtain confirmation of their vaccination status. For example, in Virginia, you can get such confirmation at vaccinate.virginia.gov. This official document should help solve counterfeit issues, although it will not eliminate the problems completely. Right now, I think most retail and entertainment venues will accept the vaccination cards presented to them. Employers or schools that impose a vaccination warrant should take extra steps to work with an employee or student if they believe they have been presented with a fake. And potential counterfeiters should also be aware that forging a federal logo (and vaccination cards bear the CDC logo) is a federal crime.