The rollout of the COVID-19 vaccine in the United States has been met with both enthusiasm and skepticism. Some feel relieved to minimize the risks of becoming infected or developing serious complications from the virus. Others fear that the vaccine itself is the greater risk, without a sufficient historical basis to guarantee its safety. With many public and private entities requiring a COVID-19 vaccination, the issue goes beyond evaluating the personal health and risk choices into questions of law. Does requiring vaccination violate state or federal constitutional rights? Do vaccination requirements conflict with federal or state statutes?
A quick look at the most likely answers to the following questions:
- Can GOVERNMENTS in the U.S. require that a person get a vaccine?
- Can SCHOOLS require students be vaccinated against COVID-19?
- Can EMPLOYERS require vaccines?
- Can a private BUSINESS exclude an unvaccinated patron?
- Can airlines or cruise lines restrict TRAVEL to people who are not vaccinated?
Can GOVERNMENTS in the U.S. require that a person get a vaccine?
Yes. While no state or federal authority has indicated that they plan to require the vaccine, individual states probably have the authority to require vaccination. During the smallpox epidemic early in the twentieth century, Massachusetts mandated vaccinations. Henning Jacobson, concerned that he would develop a reaction to the shot, challenged the constitutionality of compulsory vacation as a violation of freedom of religion. The Supreme Court upheld the $5.00 fine as a valid exercise of the commonwealth’s police power. The court also recognized the potential for a medical exception. The West Virginia Code is explicit and currently grants the authority to the state board of health to adopt “rules and regulations to obstruct and prevent the introduction or spread of smallpox or other communicable or infectious diseases into or within the State.”
Can SCHOOLS require that students be vaccinated against COVID-19 as a condition of attending?
Yes, public schools can require that students be vaccinated. A few years after the Supreme Court decided the case involving Henning Jacobson, Rosyln Zucht refused the smallpox vaccine and San Antonio public schools refused her admission. The Supreme Court upheld Zucht’s exclusion. Today, every state requires that students attending public and private schools receive certain vaccinations, providing for limited medical and religious exemptions. In West Virginia, both the code and the regulatory rule require that children entering public, private, or religious school and state-regulated child care be immunized against chickenpox, hepatitis B, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus, and whooping cough. The statute provides an exemption when a physician determines that the vaccination is contraindicated for a specific child and an immunization officer certifies that the exemption is appropriate. There is no religious exemption in the West Virginia Code.
Can EMPLOYERS require vaccines?
Yes, with some exceptions. Before COVID-19, many companies, especially in the healthcare industry, mandated vaccines. The Wall Street Journal recently reported that one Houston hospital now mandates COVID-19 vaccines for all employees, stating that it promotes the safety of the patients. Since employment in the United States is generally “at will,” employers have great liberty in establishing working conditions. The Equal Employment Opportunity Commission (EEOC) has confirmed that a COVID-19 vaccination requirement would not violate the Americans with Disabilities Act (ADA). Enforcement and exemptions to the requirement are not as clear. In some circumstances, employers may be required to provide reasonable accommodation for an employee who cannot be vaccinated due to a disability.
Can a private BUSINESS exclude an unvaccinated patron?
Most likely, yes. Businesses can restrict customers in any fashion they like, so long as it does not violate the law. Think: “no shirt no shoes no service.” The Civil Rights Act of 1964 provides one of the few limitations on restrictions. It prohibits all public accommodations from discriminating based on race, sex, religion, national origin, or a protected class. “Public accommodations” is broadly defined and includes hotels, restaurants, retail establishments and recreational facilities. As long as the vaccination does not impact a protected group, the law probably can’t restrict the business owner from imposing requirements.
Can airlines or cruise lines restrict TRAVEL to people who are not vaccinated?
Most likely, yes. Since cruise lines and airplanes travel to international locations, the travel company can restrict access to those who could not depart the ship or plane, due to a lack of vaccine verification. In domestic travel, while the Fourteenth Amendment to the U.S. Constitution may restrict the government from impeding travel, it does not restrict the ability of private businesses to impose conditions so long as they are not inconsistent with state or federal law.
About the Author: Brenda Waugh, MA JD, is a lawyer/mediator with Waugh Law & Mediation, serving clients in the Blue Ridge region of Virginia and Eastern Panhandle of West Virginia. A graduate of the University of Virginia, West Virginia University, and Eastern Mennonite University, she has conducted workshops throughout the United States and in Canada and has published articles in periodicals and legal journals in the area of alternative dispute resolution.
Web: BrendaWaugh.com; email: waugh@brendawaugh.com; phone 304-728-3660 or 540-501-5501.
By Brenda Waugh