The COVID-19 vaccine is out and many wonder what the legal ramification are; can you be required to take the vaccine.  As everyone is aware, the vaccine was rushed through at a record speed.  Have all the side effects of the vaccine been adequately studied?  We will not know the answer to this question for years.  Some may not want to take a vaccine quickly before it has been fully studied.

The 4th Amendment is the Constitutional provision that most directly impacts our privacy and what control the government has over our body.  I do not believe the State or Government can compel anyone to take the Vaccine and impose criminal or civil penalties; the case law allowing mandatory vaccination must allow for exceptions based on health risks and possible side effects to the person receiving the vaccine. The law could require vaccination as a condition to grant privileges , to attend school, to fly, participate in public events.

What about your job can an employer condition returning to work on vaccination?  

Most people are what the law calls employees at will in Massachusetts and most States throughout the nation.  Employment laws preclude employees from discriminating based on

• Race
• Sex
• Sexual orientation
• Disability
• And other constitutional protected rights such as religious beliefs.

A uniform rule of vaccination to protect all workers would not violate any of these laws and would likely be upheld.  The EEOC has already issued an advisory that vaccine would not violate the Americans with Disability Act.

Would employers be liable for negative reaction from vaccine or if no vaccine was required if someone got COVID-19 and alleged it was from work?  These are questions that the court and the legislatures will have to sort out.  Employers would likely want legislation that excludes employers from liability for side effects from the vaccine.

The EEOC has allowed employers to mandate flu and other vaccines.

The Law on Mandatory Vaccination developed in Massachusetts 

In the 1902 case of Jacobson v. Massachusetts, the United States Supreme Court ruled that Massachusetts had the power to mandate a smallpox vaccination, upholding against a Constitutional town a regulation from the City of Cambridge Board of Public Health. Cambridge Pastor Henning Jacobson had lived through an era of mandatory vaccinations back in his original home of Sweden. His argument was based on his own negative experiences with mandatory vaccination. Although the efforts to eradicate smallpox were successful in Sweden, Jacobson’s childhood vaccination had gone badly, he had an adverse react to the vaccine leaving him with a “lifelong horror of the practice.” Jacobson refused vaccination saying that “he and his son had had bad reactions to earlier vaccinations” as children and that Jacobson himself “had been caused great and extreme suffering for a long period by a disease produced by vaccination.” In this time, the smallpox vaccine was not effective for the entirety of a person’s life, so although Jacobson got the vaccine as a child, he was required to get it again. Because of his refusal to get vaccinated, Jacobson was prosecuted and fined $5 (about $150 in 2020). Over the next three years until his case reached the Supreme Court of the United States, Jacobson argued that subjecting him to a fine or imprisonment for neglecting or refusing vaccination was an invasion of his liberty, the law was “unreasonable, arbitrary and oppressive,” and that one should not be subjected to the law if he or she objects to vaccination, regardless of the reason.

When his case finally reached the Supreme Court, Jacobson argued that the mandatory smallpox vaccine violated his right to liberty under the Fourteenth Amendment and was unconstitutional. The Supreme Court was not persuaded by this argument, however, and held that a state has the authority to enact reasonable laws under its police power to protect the public health and safety of its citizens.

The Court indicated that the legislature has a right to mandate vaccines to protect the common good of everyone.  The Court in Jacobson addressed the argument by the defense that the effectiveness of the vaccine is not universal and held that the legislature has the authority to pass law for the common good as the legislature is represents the will of the people. Further, the Court held that mandatory vaccinations are not arbitrary or oppressive so long as they do not “go so far beyond what was reasonably required for the safety of the public.” In Massachusetts, with smallpox being “prevalent and increasing in Cambridge,” the regulation in question was “necessary in order to protect the public health and secure the public safety.” Jacobson is the seminal case for mandatory vaccination, and although it is over 100 years old, Jacobson is still good law today

Other cases have upheld the State’s ability to impose vaccination requirements.  In 1944, the Supreme Court in Prince v. Massachusetts, held that state law prohibiting child labor on streets and public places is constitutional as applied to a child member of a religion who is offering religious materials for money. Prince was not about vaccines, rather it involved a mother who was a Jehovah’s Witnesses, who violated child labor laws by making her nine year old daughter sell Jehovah’s Witnesses reading material on the street. The mother argued that the state was overstepping and that it was a violation of religious freedom to not allow her daughter to sell religious books on the street. The Court disagreed.

The Court reasoned that freedom of religion does not include the right to expose the community to potential harm or ill.  Parental authority is not absolute and can be permissibly restricted if doing so is in the interests of a child’s welfare. The state may constitutionally require that children go to school and that their employment be prohibited. Child labor is especially damaging, and the state is therefore empowered to prohibit it. While an adult is free to express their religion through acts of martyrdom, that freedom does not extend to making martyrs of children who are not old enough to make these decisions for themselves

In 2014, measles outbreaks in New York and California lead to vaccination requirements. In New York, a Brooklyn judge sided with New York public health officials to uphold a mandatory measles vaccinations order, dismissing a lawsuit from a group of parents who argued that the city had overstepped its power. The cases were centered in ultra-Orthodox Jewish communities in Brooklyn. The parents who fail to vaccinate their children will be fined, and many of the children will not be allowed to return to school until vaccinated.

In California, a measles outbreak linked to Disneyland spread in 2015. Measles is so contagious that one person with measles is expected to infect between 12 and 18 others. Legislators promptly took action following the Disneyland outbreak, and now  parents are prohibited from opting out of vaccines because of their personal beliefs. Now, parents in California can excuse children from vaccines only if their child has a medical reason not to be vaccinated.

The primary reasons for these outbreaks were religious exemptions in New York and personal belief exemptions in California. However, after these outbreaks the legislators of California and New York revoked nonmedical exemptions as a result so that they could ensure higher rates of people immunized against measles.

Mandatory vaccination will probably not look like a federal government vaccination requirement.  Instead, it might be a de facto requirement.  Employers, schools, and other countries will likely require their employers, students, and visitors get vaccinated.  So, to participate in everyday activities, a vaccine will likely be needed.  For example, the idea has been floating around that many concert venues, music festivals, and sports arenas will require proof of vaccination before allowing individuals to purchase tickets. Only time will tell if this becomes a reality.

States will be allowed to impose vaccination requirements based on current case law to protect public health. However, I believe the law should apply certain exceptions that allow people to avoid prosecution based on health risks for potential side effects.

Attorney DelSignore filmed a video on COVID-19 and the law.

 

Difficult choice ahead regarding COVID-19 

These are difficult choices for public officials as the mass outbreak of COVID-19 has required a vaccination to be rushed without as much time for study by the scientific community.  However, the risk of under vaccination is that COVID-19 continues to spread.  As a lawyer, it is important for us to continue to monitor the public’s health risk versus the potential side effects individuals may develop as a result of the vaccination.

These Legal issues surrounding the vaccination will continue to develop as the vaccine is ruled out during 2021.  To learn more about current issues in the law, follow Attorney DelSignore on Facebook.

To read more about COVID-19 and mandatory vaccinations, you can read this Article from Today.