A professor at the University of Virginia School of Law predicts that as COVID-19’s delta variant continues to spread and vaccines continue to receive permanent FDA approval, states, schools and employers will make it harder to avoid vaccination.
Margaret Foster Riley has written and presented extensively about health care law, health disparities and chronic disease. In 2020, she was appointed to a new National Institutes of Health advisory committee on biotechnology.
With Monday’s approval of the Pfizer-BioNTech vaccine, Riley answered questions about how much leeway vaccine-hesitant individuals will have, as well as the obstacles they may face.
Q. The state’s power to mandate vaccination has been used conservatively. Could that change with final FDA approvals?
A. Vaccine mandates are typically a power left to the states – with some exceptions, notably the military, immigrants and federal workers, who are subject to federal power and have more limited rights to refuse a vaccine. States do have significant power to enforce mandatory vaccinations if the public health need is sufficient. The controlling case is (still!) Jacobson v. Massachusetts, a 1905 Supreme Court opinion wherein the court upheld Massachusetts’ power to mandate smallpox vaccination during an outbreak in the state.
State power has only been involved recently when the mandates have been issued by state universities and state-related health systems or for individuals traveling into the state. That may change if the public health need becomes even more urgent. It may also change as FDA approval is granted to more of the vaccines.
The state power is not without limits, of course. There must be a genuine public health need (as determined by the state), and today, most courts would probably also recognize the need for an exemption for individuals who would suffer bodily harm by being vaccinated (although they might still be subject to some mitigation controls such as masking or frequent testing). Although most COVID vaccination mandates also include religious exemptions, it is less clear that those would always be required.
Law professor Margaret Foster Riley also is a professor of public health sciences at the School of Medicine, and professor of public policy at the Batten School of Leadership and Public Policy. (Photo by Jesús Pino)
Q. Will businesses increasingly tie vaccination to employment?
A. Businesses can require proof of vaccination as a condition for entry on the premises. There are limits in the sense that the business cannot make that demand in a way that discriminates against a protected class. So, for example, you could not target a specific ethnicity in requiring such proof. You may need to provide accommodations for individuals who can prove a relevant disability. The Americans with Disabilities Act (and the Rehabilitation Act in the case of government employees) likely requires that exception.
One of the most influential factors in fighting vaccine hesitancy has been employer action. When you tie vaccination to livelihood, more people pay attention. When Walmart and Disney imposed vaccine mandates, that had an impact. Recently, a health insurer mandated vaccination even for its remote workers. And it has also helped to require vaccination for entertainment that people want to attend. New York has been a leader in this, and it has been effective in getting people vaccinated.
Q. Will the courts will continue to uphold vaccinations in higher education?
A. Colleges have both the right and obligation to protect their students and employees, and to adopt reasonable mitigation strategies. Epidemics pose additional risks to college populations because residential living, classroom activities and many extracurricular activities involve large numbers of people and multiple shared spaces. So long as the mitigation strategies are reasonable and enforced in a legal fashion, the 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 prevalence of the disease is high.
Q. Will requirements for K-12 vaccinations likely depend on a combination of FDA approvals and a state’s overall health picture?
A. Primary and secondary schooling are required, and that changes the calculus somewhat, although in a worsening public health context, it is still possible to imagine COVID vaccine mandates for school children 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 mandates more likely for this population. If the public health need requires mandatory vaccination, schools would likely have legal support for vaccine mandates.
Q. It seems vaccine hesitancy will continue because of ideological disputes and misinformation. What is your reaction to that?
A. Vaccine hesitancy is unfortunately nothing new, so we’ve got considerable experience finding public health remedies. We also know that there are many reasons for vaccine hesitancy; some of it is ideological, some is disinformation or lack of information, a few situations involve religious beliefs and in many cases, there is just inertia that gets in the way.
