By: Ellis L. Bennett

The Covid-19 vaccine is readily available nationwide. Unlike in the rest of the world, Americans can walk into a drugstore, pharmacy, or grocery store and get vaccinated without even making an appointment. Consequently, private companies, both large and small, are looking at their policies regarding Covid-19 and other vaccinations, and many business leaders are looking for guidance on what the law allows and requires.

Can states or the Federal government require residents to get vaccinated? 

While this issue has yet to be litigated extensively with regard to the Covid-19 vaccine, in April, 2021, the Congressional Research Service authored some guidance on this topic. The Supreme Court has ruled that states can mandate vaccinations under their general police powers. This precedent dates back as far as the early 20th century when the Court upheld a smallpox vaccine mandate in Massachusetts. Twenty years later, the Court also upheld mandatory vaccinations for public school children under the rationale that the states were responsible to protect public health. More recently, the Supreme Court has reviewed challenges to mandatory vaccinations under the free exercise of religion; while many states have chosen to make such exemptions, the Court generally rejects these claims. States routinely require vaccinations for public schoolchildren and for certain occupations, like healthcare, by statute. These are typically favored by courts.

In the federal government, there are currently no laws mandating vaccines in the general population; there are exceptions for military service and immigration. There is an argument to be made that the president may accomplish such through an executive order. The Public Health Service Act grants the secretary of Health and Human Services the power to make and enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases…” The Court has yet to determine whether the interpretation of this law would include mandatory vaccination in a public health emergency. This issue has not yet been settled relative to an executive order, but Congress also has power to act in this area by withholding federal funds from states who do not require vaccinations. While this has not yet come to fruition, they do have that budgetary ability. 

Does it matter that FDA has only given emergency authorization?

This could be an issue for the Court to determine in an overall analysis of any individual mandate. The Court would likely be called upon to look at the statutory language at issue and interpret it in the factual context of the law. However, considering court cases typically take months from inception to conclusion, this issue will likely be moot soon as the FDA anticipates full approval within weeks of the writing of this article. An executive order aside, state legislatures and Congress are unlikely to pass any relevant mandates before this issue is no longer a concern. 

Can business owners require vaccines for employees?

Generally speaking, yes. While this is a quickly changing legal landscape, several recent cases have interpreted business owners to have the power to require vaccination as a condition of employment. Employees do have the right to seek a reasonable accommodation for vaccination under the ADA or on religious grounds. Nevertheless, several cases have already been litigated involving medical facilities and universities that have required the Covid-19 vaccines for employees; they have solidly favored the employers. This is in line with historical precedent favoring the rights of business owners to require other vaccinations. While we will continue to see litigation on the Covid-19 vaccine in particular, and this is not an entirely settled issue, the courts have upheld the rights of a business in many similar circumstances. 

Can Businesses require customers to be masked?

Yes. Businesses have the right to impose standards of conduct on their premises, including dress and behavior, as long as those requirements are not discriminatory. Masking would be no different under this analysis. Further, recent CDC guidance also indicates that businesses are free to maintain a mask policy even when the agency itself does not specifically recommend masking for vaccinated people. However, just as with vaccine policies, the ADA requires that persons with a disability be given a reasonable accommodation if they cannot wear a mask for medical reasons. For many businesses, this could be accomplished through online ordering and other virtual access options. What will be considered reasonable by the court will depend on the facts of an individual case. 

Congressional Report for your reference:

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Ellis L. Bennett is a partner at Dunlap Bennett & Ludwig. His practice is focused on civil litigation, including complex construction disputes, and employment law, as well as security clearance review and government contractor suspension and debarment. He is an experienced trial lawyer, having tried well over 100 cases, and is co-chair of the firm’s litigation group.

To learn how Mr. Bennett can assist with your legal needs, click here.

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