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April 13, 2021

As Employers and Colleges Introduce COVID-19 Vaccine Mandates, Wider Use “Remains an Open Question”

Author Affiliations
  • 1Consulting Editor, JAMA Health Forum and JAMA
JAMA Health Forum. 2021;2(4):e210874. doi:10.1001/jamahealthforum.2021.0874

Although a growing number of US residents have been vaccinated for COVID-19 or intend to be immunized as soon as possible, 13% of people surveyed in March said that they would definitely not get vaccinated, and 7% said they would do so only if vaccination were required. Whether employers, colleges and universities, or governments can and will mandate COVID-19 vaccination is a key question, one that is explored in a new issue brief from the Kaiser Family Foundation (KFF).

The share of US adults who said in the March survey that they oppose being vaccinated includes a significant proportion of health care workers, with 12% of frontline health care workers saying they would definitely not get vaccinated and 18% saying they’d be vaccinated only if required. Some employers are starting to require COVID-19 vaccines, including health care organizations. In addition, more than a dozen colleges and universities have instituted vaccine mandates for students.

However, the extent to which states, employers, or both might issue COVID-19 vaccine mandates “remains an open question” that could affect vaccine distribution and uptake, the brief’s authors explain. “This is likely to become a more prominent issue over time, as the need to vaccinate a large share of the US population becomes more urgent in the face of variants and reluctance by some to get vaccinated, and if any of the vaccines which currently operate under emergency use authorization (EUA) are fully approved by the Food and Drug Administration.”

The public is divided on the issue of vaccine mandates, with 51% saying employers should be permitted to require vaccination for COVID-19 and 45% saying that the practice should not be allowed, the KFF report says. So far, neither the federal government nor states have mandated vaccination for COVID-19.

The report examines the legality of COVID-19 vaccination mandates, as well as which entities can require vaccination.

The federal government’s authority to institute a general vaccine mandate is unclear and untested in the courts, and also “likely limited at best,” the report says. Although the Public Health Service Act authorizes the secretary of the Department of Health and Human Services to adopt quarantine and isolation measures to stop infectious diseases from spreading among states, the Act doesn’t mention vaccine mandates specifically. Instead, the authors note, vaccine mandates are generally within the scope of state and local governments, “with the federal government playing a supporting role.”

Federal law does mandate certain vaccinations for immigrants seeking entry to the United States. In addition, courts have upheld the federal government’s authority to mandate vaccines for members of the military.

However, because COVID-19 vaccines currently operate under EUA and courts have not yet ruled on the issue, the Department of Defense is reportedly unable to make COVID-19 vaccination mandatory for service members—a matter of concern, given recent news reports of the Pentagon saying that nearly 40% of US Marines who have been offered the COVID-19 vaccine have declined it. Last month, however, a group of Congressional Democrats asked President Biden to issue a waiver to require COVID-19 vaccination for all US military service members.

As for states, the KFF report notes that they have the authority for general vaccine mandates to protect public health—an authority upheld by the US Supreme Court, based on a 1905 case, Jacobson v. Massachusetts. All states currently have school vaccination requirements for children, subject to certain exemptions (such as those based on disability or religious objection); requirements for health care workers vary.

“More generally, though, states do not use mandates for adult vaccination and [they] have thus far said they are not mandating COVID-19 vaccination,” the report says.

With respect to vaccine mandates by employers, the authors note that in the absence of state bans on vaccine mandates, some employers are requiring their workers to be vaccinated for COVID-19. However, they add, news and other reports suggest that such mandates do not appear to be widespread and tend to be limited to health care settings, nursing homes and other facilities with congregate or medically vulnerable populations, some colleges and universities, and at least 1 county detention center in New Mexico.

A federal lawsuit challenging the New Mexico county detention center’s COVID-19 vaccine mandate has been filed, claiming the requirement conflicts with federal law on EUAs, the report said. Some states are contemplating legislation that would bar employers from issuing COVID-19 vaccine mandates for their workers or limit such mandates to employees in health care settings; a few are pondering legislation that would prohibit schools, private businesses, or others from requiring vaccination as a condition for attendance or receipt of services.

Under federal law, employers that require vaccination must offer “reasonable accommodations” to employees who are not able to be immunized due to a disability, the report says. Employer vaccine mandates are also subject to religious accommodations, although courts have ruled that state vaccine mandates are not constitutionally required to provide religious exemptions.

“It is clear that widespread take-up of COVID-19 vaccines is necessary to get the pandemic under control,” the authors wrote. “However, even if mandates ultimately are determined to be permissible, policymakers also will likely consider whether mandates are the most effective means of accomplishing this goal.”

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Article Information

Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2021 Stephenson J. JAMA Health Forum.

Corresponding Author: Joan Stephenson, PhD, Consulting Editor, JAMA Health Forum (Joan.Stephenson@jamanetwork.org).

Conflict of Interest Disclosures: None reported.

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    1 Comment for this article
    Apples to Apples
    Sharon Choy, BS RN | Retired R.N.
    There is no fair comparison of mandating immunizations that are time-tested by normal standards versus mandating immunizations that are not FDA-approved except under EUA. There is/are ways around immunization in protecting patients from potential exposure to SARS-CoV-19 that have been successfully used even through last year and into this one, so it is not an emergent need to mandate all healthcare workers to be immunized. If the proper PPE is provided, as it should be - incumbent on the government and management - then the use of such protection seems to have done us well enough to get us to this point in time where we are seeing marked reductions in cases and deaths.

    Those that choose to to be vaccinated should be allowed, and those that for whatever reasons choose not to, should not be forced, nor threatened with being fired, nor socially be made pariahs for their choice. Healthcare workers are people first, and deserve the same rights to "op in" or "out" depending on their assessments of their individual situations, health histories, religious beliefs, whatever.