Two years ago, as COVID-19 began to spread around the world, many put their hopes on scientists efficiently and quickly developing safe and effective vaccines. In December 2020, the FDA granted emergency use authorization (EUA) for two vaccines — one made by Pfizer-BioNTech and the other by Moderna. In August 2021, the FDA approved the first biologics license application for the Pfizer-BioNTech COVID-19 vaccine for use in individuals 16 years of age and older. Moderna’s vaccine (Spikevax) was approved for use in adults on January 31, 2022, less than two years after the start of the pandemic.
When these COVID-19 vaccines were introduced in late 2020, many anticipated a swift mass vaccination effort in order to control the spread of the virus. As the vaccines became more widely available, settings such as nursing homes, emergency services, and universities began requiring vaccination for employment or attendance.[1] As companies and institutions, as well as local, state, and federal governments, began to explore vaccination policies, they encountered support from those seeking to achieve herd immunity, even if it meant implementing vaccine mandates. As of October 28, 2021, one in four workers reported that their employers required vaccination against COVID-19.[2] However, anti-vaccine advocates have long sought to undermine the use of vaccines in education, employment, and other settings and have vehemently opposed vaccine mandates.
Despite hopes that vaccines would end the COVID-19 pandemic, many remain unvaccinated, and the anti-vaccine movement has even gained momentum.[3] Particularly worrying is the fact that policies supported by anti-vaccine advocates go beyond prohibiting COVID-19 mandates — and could affect mandates for all vaccines, impacting how governments, employers, and individuals can respond to future outbreaks.
This report considers one particular argument being explored by groups who oppose vaccine mandates — that individuals who are unvaccinated should be a protected group under constitutional and statutory law. It will analyze the efforts of anti-vaccine advocates to: (1) classify the unvaccinated as a “suspect” class in order to undercut state vaccine mandates, utilizing a constitutional law analysis; and (2) classify the unvaccinated as a “protected” class, as laid out in federal and state anti-discrimination laws, in order to undercut employer and other institutional vaccine mandates. Ultimately these efforts pose a significant threat to national and global public health and could establish dangerous precedents that limit the effectiveness of future vaccination campaigns.
The Constitutionality of State Vaccine Mandates
As a general rule, it has long been accepted that states have the authority to mandate the vaccination of their citizens, and, in fact, most states do have laws requiring certain vaccinations.
Before the beginning of the COVID-19 pandemic, all 50 states had laws requiring children to receive certain vaccinations before attending public school, although some states have more extensive religious and philosophical exceptions to these rules. And in the context of COVID-19, according to the American Bar Association, “as of November 10, 2021, 22 states had implemented COVID-19-related vaccine mandates impacting the employment of healthcare workers,[4] public employees,[5] school volunteers,[6] and some public contractors (depending on the state).”[7]
Among the rights afforded by the U.S. Constitution are rights to due process and equal protection.[8] If a citizen believes that a law violates her rights under the 14th Amendment, a court will evaluate and determine whether, in passing the law, the state has a legitimate policy interest. The court will decide (1) whether there exists a nexus between the policy goal and the policy outcomes and (2) whether a fundamental right is implicated by the policy. If the interest of a protected class is implicated (i.e., if a law unfairly discriminates against a protected class), government regulation will be subject to a higher level of scrutiny. In other words, rules promulgated to protect public health must respect the constitutionally protected right of equal protection under the law, which would protect “suspect” classes from discrimination. There are four suspect classifications: race, religion, national origin, and alienage/citizenship. All of these groups have historically been subject to discrimination.
Figure 1 — Different Protected “Classes”
The 1905 Supreme Court decision Jacobson v. Massachusetts is the most well-known case granting a state the ability to require the vaccination of its citizens. In this case, the city of Cambridge required smallpox vaccination and revaccination for all adults.[9] One citizen, Henning Jacobson, refused to be vaccinated against smallpox and was fined. In its reasoning, the Supreme Court recognized the inherent tension between individual rights and public health protection. It upheld the Massachusetts’ law, holding that “the state has the right to interfere with individual liberty and immunize citizens if it determines that there is a valid public health reason to do so.”[10] It held that such laws are appropriate delegations of state police power: the power to enact reasonable measures to protect and secure the health, safety, and welfare of the community and its citizens. Such laws violate individual constitutional rights if they are arbitrary and unjustified in intent, extent, or enforcement. Laws that protect the health and welfare of citizens must therefore employ reasonable means to achieve reasonable ends. The Court emphasized the principle of universality, implicitly condemning Jacobson as a “free rider” based on the notion that if one individual can excuse himself, so too could many others — and the result could endanger the whole community.
Historically, courts have been deferential to local and state governmental health orders in a public health emergency. Generally speaking, when a law appears to treat individuals differently, courts defer to the legislative judgment that the distinction serves a rational purpose. And, in most cases, laws intending to protect public health have been seen to further a legitimate government interest, therefore establishing a rational basis for differential treatment.
However, many courts have been less deferential to public health regulations implemented during the COVID-19 pandemic. Since 2020, the Supreme Court has been increasingly sympathetic to challenges relating to religious liberty,[11] applying strict scrutiny to public health regulations that appear to burden religious freedom. Although “courts have consistently held that neutral, generally applicable vaccination mandates needn’t include religious exemptions,” recent Supreme Court decisions “suggest a reduced willingness to view laws that include some exemptions as neutral.”[12] Legal scholars have therefore observed, “[a]ny restrictions that touch on religious activities may therefore be constitutionally suspect.”
Thus, courts appear to be more open to arguments that would seem to undermine the government’s ability to control the spread of infectious disease in the name of individual rights and liberties. Today, considering the privacy rights and liberty interest jurisprudence established under the 14th Amendment’s due process clause, a court may evaluate the constitutionality of a law mandating a bodily invasion, like a vaccine injection, using a higher level of scrutiny. Thus, if pressed, a court might consider a law like the Massachusetts’ smallpox inoculation mandate at issue in Jacobson v. Massachusetts differently today — although it would still likely be upheld as long as it had appropriate exceptions for those who would be harmed by the vaccine.
Federal Civil Rights Laws and Institutional/Private Employer Vaccine Mandates
Private employers and businesses that seek to require the vaccination of employees, customers, or others are subject to federal and state anti-discrimination laws. Thus, cases like Jacobson v. Massachusetts, which address the legality of state and local vaccine requirements, do not affect the rights of employers to require COVID-19 vaccinations for their employees. Rather, employers must comply with various federal and state civil rights laws. Under existing law, employers may not impose vaccination requirements that have a disparate impact on, or disproportionately exclude, employees based on their membership in a “protected class.”
There are a variety of federal laws that prohibit private employers from discriminating against protected classes, or specific groups of people with a common characteristic like race, color, disability, national origin, religion, veteran status, citizenship, and sex. Specifically, the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 include requirements for reasonable accommodations and non-discrimination based on disability.[13] Title VII of the Civil Rights Act of 1964[14] prohibits discrimination based on race, color, national origin, religion, and sex, including (as amended by the Pregnancy Discrimination Act of 1978) pregnancy.[15] Other federal statutes address discrimination. For example, vaccine incentive programs are governed by the Affordable Care Act (ACA) prohibition against health status discrimination, while the Genetic Information Nondiscrimination Act forbids discrimination based on genetic information in health coverage and employment. However, there are many groups that are not explicitly protected from discrimination under federal law, including those distinguished by education level, economic class, or membership in social organizations, among others. Some state laws also extend anti-discrimination protections to other groups of people, including on the basis of gender identity, sexual orientation, political ideology, and service in a state militia.
Together, the ADA and Title VII require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. In the case of disability, undue hardship is defined as a significant difficulty or expense.[16] In the case of religion, it is defined as having more than minimal cost or burden on the employer — a lower standard for employers to meet. Reasonable accommodations include teleworking, masking, testing, and limiting contact with other employees.
Even in a public health emergency, civil rights laws remain in effect.[17] Early in the COVID-19 pandemic, the U.S. Department of Health and Human Services Office for Civil Rights — which enforces civil rights laws, conscience and freedom laws, the Health Insurance Portability and Accountability Act, and the Patient Safety Act and Rule — issued guidance to clarify that discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion, is prohibited, even during a state of emergency. Thus, while not being subject to the 14th Amendment, private employers must still follow federal and state laws that forbid discrimination.
Workplace anti-discrimination laws are enforced by the U.S. Equal Employment Opportunity Commission (EEOC). In 2020, the EEOC issued federal guidelines stating that under federal laws, employers may require employees to be vaccinated against COVID-19 as a condition of employment, subject to the reasonable accommodation provisions of Title VII and the ADA.[18] And the EEOC explicitly clarified its position that “asking or requiring an employee to show proof of receipt of a COVID-19 vaccination” is not a disability-related inquiry.
In November 2021, the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor released its “COVID-19 Vaccination and Testing Emergency Temporary Standard,” in order to protect unvaccinated employees of large employers with 100 or more employees from workplace exposure to COVID-19. The Emergency Temporary Standard (ETS) required covered employers to establish, implement, and enforce a written mandatory COVID-19 vaccination policy, while also allowing employers to instead require unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering at the workplace. However, in early 2022, the Supreme Court rejected OSHA’s vaccine-or-test rule, stating that the agency had exceeded its authority because COVID-19 was not a health threat confined to workplace settings.[19]After the Supreme Court’s decision, OSHA withdrew the ETS, but continued to strongly encourage vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.[20]
During the period of time in which the COVID-19 vaccines were subject to an EUA, some argued that the vaccines’ status rendered them ineligible for mandates.[21] However, despite the vaccinations’ temporary EUA status (both vaccines were approved by the FDA for individuals 18 years and older by January 2022), arguments that employers cannot mandate vaccines subject to a EUA because they are too novel to know the true risks of a population-wide vaccination campaign, are not legally sound.[22] On July 6, 2021, the U.S. Department of Justice’s Office of Legal Counsel issued a memorandum opinion concluding that section 564 of the Federal Food, Drug, and Cosmetic Act (FDCA) does not prohibit public or private entities from imposing vaccination requirements for a vaccine that is subject to an EUA. A vaccine subject to an EUA has been determined to be safe. This particular argument is now moot, however, because the Moderna and Pfizer COVID-19 vaccines have since received full approval from the FDA.
Declaring the Unvaccinated a Suspect or Protected Class
Against this backdrop, opponents of mandatory vaccination have presented a rather novel argument, positioning anti-vaccine sentiments within a constitutional and civil rights framework. They argue that their choice not to be vaccinated qualifies them as a suspect or protected class. This effort may be distinguished from current federal and state rules that legally require exemptions from vaccine mandates due to medical reasons, religion, pregnancy, or disability. Rather, it is argued that policies that, for example, allow vaccinated individuals to enter businesses or places of public accommodation, allow vaccinated employees not to take COVID-19 tests on a regular basis, provide extra sick time to vaccinated employees, or otherwise grant those who are vaccinated preferential treatment, are discriminatory against those who refuse vaccination. This argument attempts to equate unvaccinated individuals with those who have been historically disadvantaged and are protected by the Constitution or federal and state civil rights laws.
In response to state or local laws that rely on governments’ policy powers to mandate the vaccination of its citizens, arguments to declare the unvaccinated as a suspect class situate the rights of those who refuse vaccination within a constitutional framework. If efforts to classify unvaccinated individuals as a suspect class succeed, state regulations seeking to control the spread of COVID-19, or other vaccine-preventable diseases, by mandating vaccines for its citizens would be subject to the highest level of scrutiny. Regulations that discriminate against a suspect class will only be upheld if the law furthers a compelling government interest and ensures the legislature/agency/government narrowly tailored the law to accomplish that interest.[23] Under an equal protection clause analysis, without implicating a suspect class, public health laws do not violate individual liberties, because they further a legitimate government interest in protecting health, and there is a rational basis for differential treatment.[24] In other words, such emergency orders bear a rational relationship to the legislative goal of protecting the public.[25] However, when public health laws are “applied more harshly against members of racial and ethnic minority groups and other socially vulnerable groups than others,” and the “differential treatment of protected groups is explicit in the law or can be proved intentional, the court will intercede”[26] by limiting or striking down those laws.
With regard to civil rights laws and efforts to define those who refuse vaccination as a protected class, state laws may extend anti-discrimination protections to other categories of individuals beyond those afforded in federal statutes. Under existing civil rights laws, employees may remain unvaccinated if they belong to a protected class (including religion, pregnancy, or disability status). However, in the absence of state anti-discrimination laws designating individuals who refuse vaccination as a protected class, such individuals are at-will employees who may be terminated for violating employer policy. For example, in late 2021, a group of 39 employees who failed to comply with their employer’s vaccine mandate attempted to bring suit. In Hayes v. University Health Shreveport, LLC,[27] an employer notified all employees that they were required to be fully vaccinated against COVID-19 by October 29, 2021. Employees not vaccinated within the specified time were subject to disciplinary action, including mandatory use of leave time and, ultimately, termination. The employer’s policy included exemptions for valid religious and medical reasons. The employees challenged this policy, and at trial, the court observed, “the employees and employer’s employment at-will is just that. [The employer] can fire them [e]xcept if it’s based on a protected class such as sex or race.” On appeal, the Supreme Court of Louisiana held that no exception to this state’s at-will employment doctrine applied.
Using language similar to that of existing civil rights laws, efforts to declare the unvaccinated as a protected class tie vaccination status to one’s innate identity. These efforts signify a significant step in the anti-vaccine movement. If enacted, state and local anti-discrimination ordinances may impose broader obligations on employers to provide exemptions from vaccine policies. For example, state legislatures, including the Texas Legislature, have begun to take steps to enshrine these arguments in statute. The 87th session of the Texas Legislature saw various “vaccine anti-discrimination” bills. In May 2021, Senator Bob Hall introduced S.B. 1669, in order to prevent “discrimination and mandates regarding immunizations [that] take place as a result of the COVID-19 pandemic.”[28] The bill would: (1) prohibit discrimination against individuals based on their immunity status and (2) prohibit vaccine mandates of any kind, both governmental and private. While the bill does not refer to those who refuse vaccination as a protected class, it does extend statutory protections for those who are not vaccinated. The bill would extend these protections to all children, eliminating any vaccine requirements — including those that previously existed — for attending public schools in the state. Similarly, Representative Candy Noble and colleagues in the Texas House of Representatives introduced H.B. 39, which would prohibit employer discrimination against those who choose not to receive the COVID-19 vaccine.[29]
In October 2021, S.B. 51, introduced by Senator Bryan Hughes, failed to pass before the Texas Legislature adjourned its third special legislative session. The law would have made any entity, including hospitals, vulnerable to discrimination lawsuits if they mandated vaccinations for all employees. Another Republican, Senator Bryan Seliger, called the bill “anti-business,” observing, “I’ve got some real reservations because I think it’s another example of big government … And we don’t do that.”[30]
Other states have introduced “vaccine anti-discrimination” legislation that would protect individuals who choose not to receive a COVID-19 vaccine (Figure 2). For example, in November 2021, Tennessee passed a law that prohibits businesses, governments, and schools from taking “adverse action” against anyone who has refused a COVID-19 vaccination for any reason.[31] Specifically, it prohibits employers from “discharg[ing], threaten[ing], or otherwise discriminat[ing] against” the employee “in any manner that affects the employee’s employment due to failure to provide proof of vaccination.”
Figure 2 — States with Vaccine Anti-Discrimination Bills Proposed and Passed
Likewise, in 2021, Virginia introduced a bill that “prohibits discrimination based on a person’s vaccination status with respect to any COVID-19 vaccine (i) with regard to education, employment, insurance, or issuance of a driver’s license or other state identification or (ii) in numerous other contexts.”[32] Utah has two bills slated to be considered in 2022 that are intended to “protect vaccine-hesitant Utahns from discrimination in the workplace or community.”[33] One of the bills would add “immunity status” to the list of protected groups under state anti-discrimination laws (which currently includes race, color, religion, ancestry, national origin, and pregnancy).[34]
In 2021 and 2022, bills have been introduced in many other states to prohibit discrimination based on vaccination status, including Alaska,[35] Arizona,[36] Colorado,[37] Florida,[38] Hawaii,[39] Indiana,[40]Kentucky,[41] Louisiana,[42] Minnesota,[43] Missouri,[44] New Hampshire,[45] New Jersey,[46] Ohio,[47]Oklahoma,[48] Pennsylvania,[49] Rhode Island,[50] South Carolina,[51] and Wyoming.[52] Beyond proposals that specifically ban discrimination on the basis of vaccine status, during 2021 state legislative sessions, a vast majority of states also proposed (and many passed) laws to protect individuals from private employer vaccine mandates[53] and vaccine “passports.”[54] In October 2021, Texas became only the second state to prohibit “any entity” — private or otherwise — from “compelling” vaccinations for employees or consumers.[55]Governor Abbott’s executive order GA-40 also declared that it is likely that the majority of such cases would not result in the employee’s disqualification from employment insurance benefits.
However, no state has yet gone as far as Montana, which passed H.B. 702 in May 2021. The law prohibits “a person or a governmental entity to refuse, withhold from, or deny to a person any local or state services, goods, facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities based on the person’s vaccination status,”[56] with exemptions for nursing homes and long-term care and assisted-living facilities. It also specifically forbids any employer — private or governmental — from requiring employees to be vaccinated. In other words, it puts an employee’s vaccination status in the same category as race, sex, and religion when it comes to employment discrimination. This law impacts not only COVID-19 vaccine mandates, but all vaccines — including those required for public school enrollment. Violation of H.B. 702 is considered discrimination under the Montana Human Rights Act. In February 2022, a state judge upheld the law, writing that the law merely “prevents [the employer] from implementing the health and safety measure he wants, which is to treat vaccinated and unvaccinated individuals differently.”[57] That challenge to H.B. 702 is still in the appeals process, but in March 2022, a federal judge barred enforcement of the law for health care facilities, clinics, and private practitioners while the federal interim final rule mandating vaccination in such settings is in effect.
As recognized in that decision, laws that prohibit vaccine mandates may directly conflict with federal efforts to require vaccination of health care workers, federal employees, and others. For example, Biden’s executive order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” mandates vaccination specifically for employees of federal contractors. The nationwide injunction against this rule was lifted by a Georgia judge in August 2022, allowing the mandate to, by and large, go back into effect. Likewise, some argue that laws that forbid vaccine mandates wholesale are too expansive, and should at least exclude school and health care settings to protect the health of their patients. Medical facilities expressed concern that following the state law would lead to the loss of Medicare and Medicaid reimbursements for not following federal rules that mandate vaccination.[58] Further, rejection of school mandates will likely lead to increased outbreaks of vaccine-preventable diseases such as measles and whooping cough.
Implications for Vaccine Policy
Except in Montana, under current civil rights laws, vaccination status is still not a protected class. In most cases, protected class designations are premised on a person’s “immutable characteristics”[59] or inherent traits — those that are impossible or incredibly difficulty to change. Laws that prohibit against discrimination based on intrinsic differences, rather than mutable or changeable characteristics like political leanings and group associations, are necessary in order to protect individuals from unjust treatment. Legal scholars note that “antidiscrimination law has moved beyond immutability” with respect to characteristics like religion and sexual orientation on the grounds that “such characteristics are very difficult, as a practical matter, to change, or … are so fundamental to personhood that ‘it would be abhorrent for government to penalize a person for refusing to change them.’” In other words, it should be illegal to discriminate against a person based upon who they are as a person.
In contrast, one’s choice not to vaccinate is not, as a general rule, outside of one’s immediate control. Further, evidence shows that vaccine willingness is dynamic, and “opposition to vaccination is far from immutable.”[60],[61] While a plaintiff may be able to argue that an employer’s vaccine mandate results in a disparate impact by equating the failure to comply with the mandate to discrimination on the basis of gender or race, such an argument is likely to encounter high hurdles in light of past precedents.
Including vaccination status among the list of protected characteristics will render employer and other institutional efforts to require vaccination that much less likely to be upheld if challenged. Unlike existing anti-discrimination laws, extending civil rights protections to those who choose to refuse vaccination has a negative impact on others in the community — many of whom those existing laws are intended to protect. The American Civil Liberties Union (ACLU), whose mission is to protect civil liberties, has acknowledged that vaccine mandates are not one-size-fits-all. Rather, vaccine mandates are permissible under certain circumstances, which are all met in the case of COVID-19: “The disease is highly transmissible, serious and often lethal; the vaccines are safe and effective; and crucially there is no equally effective alternative available to protect public health.” In fact, the ACLU has argued that “[f]ar from compromising civil liberties, vaccine mandates actually further them.”[62] Rather than focusing on those who choose not to be vaccinated, the ACLU emphasizes that mandatory vaccination protects the most vulnerable in our communities, including individuals with disabilities, communities of color, and children too young to be vaccinated. The ACLU continues, “by inoculating people from the disease’s worst effects, the vaccines offer the promise of restoring to all of us our most basic liberties, eventually allowing us to return safely to life as we knew it, in schools and at houses of worship and political meetings, not to mention at restaurants, bars, and gatherings with family and friends.”
Jurisdictions that have proof-of-vaccination requirements, incentive payments, and employer-based vaccine mandates tend to have higher vaccination rates.[63] Conversely, the states that are driving the vaccine choice/anti-discrimination movement have the lowest vaccination rates. The politicization of vaccination efforts is largely responsible for this. Many politicians and policymakers have aligned themselves with those who refuse vaccination in order to build loyalty.[64],[65] Efforts to designate those who refuse vaccination as a protected class intentionally undermine the ability of institutions and governments to encourage vaccination — and are likely to result in even lower immunization rates.
In the context of prohibitions on employer vaccine mandates, laws that prohibit discrimination on the basis of vaccine status would tie employers’ hands, limiting their ability to keep employees and customers safe. As Lawrence Gostin, a law professor at Georgetown University Law Center, states, “[w]hen a legislature passes an anti-vaccine law, it sends a signal to businesses not to deploy any kind of vaccine system.”[66] Thus, designating those who refuse vaccination a protected class will have a deterrent effect on institutions, who are already struggling with identifying the most appropriate ways to provide reasonable accommodations to those who qualify under federal disability laws. Requiring accommodations for all employees who choose to reject vaccination, regardless of their circumstances, may overburden private employers and provide disincentives for vaccine mandates.[67]
Further, the implications could extend beyond the COVID-19 pandemic. For example, a bill that would apply to all immunizations — including childhood vaccines such as measles, mumps, hepatitis, meningitis and tuberculosis — was recently introduced in the Ohio Legislature.[68] Across the nation, immunizations for these highly infectious diseases are tied to school enrollment. Currently, “[t]he national vaccination effort is … dependent on partnerships with various institutions, like schools and employers, to encourage more people to get vaccinated.”[69] Efforts to designate the unvaccinated as a protected class may result in lower rates of vaccination, as parents will have fewer incentives to vaccinate their children.
In 2022, the United States has already seen the reemergence of the polio virus in addition to an outbreak of monkeypox, the latter of which has been declared a federal public health emergency.[70] Both diseases have safe and effective vaccines that have been proven to control the transmission of these dangerous viruses. However, if the unvaccinated become a protected class, the spread of such diseases is likely to escalate.
Vaccine mandates have historically been highly effective in schools, health care facilities, and the U.S. military. Beyond instituting policies to ensure vaccination, there are few, if any, alternatives to safeguard the health of the community. Laws that designate the unvaccinated as a protected class would thwart efforts to protect the public from other highly transmissible viruses. And, in fact, Montana’s H.B. 702 applies not just to COVID-19 vaccines, but all vaccines, including those that protect against measles and whooping cough.
Classifying unvaccinated individuals as a protected class is also legally inconsistent with the history of vaccine mandates. Mandatory vaccines are, by their nature, an intrusion into individual autonomy and bodily integrity. However, the right to individual autonomy is not absolute and may be limited in circumstances where individuals pose a risk to others. In the context of COVID-19, the risk of transmission and harm to others is great, particularly for at-risk individuals and communities. The Supreme Court held in 1905 that there are justifications for when such intrusions are necessary, and it is essential to continue to abide by this precedent.
Throughout the COVID-19 pandemic, citizens have used the legal system to enforce COVID-19 restrictions and, conversely, to argue against them.[71] Efforts to declare the unvaccinated a protected class are just one weapon in anti-vaccine advocates’ arsenal that could severely limit our ability to control highly transmissible and dangerous diseases. Countering these efforts will be a prolonged but necessary process to safeguard public health.
Acknowledgments
The author would like to thank Baker Institute staff — especially Kirstin Matthews and Jacquie Klotz — for feedback on the manuscript. This article is part of the 2022 Vaccine Policy Symposium. Support for dissemination of this report and other vaccine policy research was generously provided by a “Bridging Bioethics Research & Policy” grant from The Greenwall Foundation. For more information and other related research, visit the Baker Institute Vaccine Project webpage at https://www.bakerinstitute.org/vaccine-project.
Endnotes
[1] Govind Persad, “Tailoring public health policies,” American Journal of Law & Medicine 47, no. 2-3 (2021): 176, 180, https://doi.org/10.1017/amj.2021.14.
[2] Liz Hamel et al., “KFF COVID-19 vaccine monitor: October 2021,” KFF, October 28, 2021, https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-october-2021/.
[3] Moises Velasquez-Manoff, “The anti-vaccine movement’s new frontier,” The New York Times, May 25, 2022, https://www.nytimes.com/2022/05/25/magazine/anti-vaccine-movement.html.
[4] Dan Levin and Shawn Hubler, “California will require many healthcare workers, and all state employees to get shots or tested regularly,” The New York Times, July 26, 2021, https://www.nytimes.com/2021/07/26/us/california-state-vaccine-mandate-employees.html.
[5] Sherry L. Talton and Noorin Hamid, “Washington state continues to mandate Covid-19 vaccination for certain workers,” National Law Review, December 1, 2021, https://www.natlawreview.com/article/washington-state-continues-to-mandate-covid-19-vaccination-certain-workers.
[6] Janelle Salanga, “What to know about Sacramento city schools’ Covid-19 vaccine requirement,” Capradio, December 1, 2021, https://www.capradio.org/articles/2021/12/01/what-to-know-about-sacramento-city-schools-covid-19-vaccine-requirement/.
[7] Julie Parrish, “Evaluating compulsory Covid-19 vaccination mandates,” Health eSource, American Bar Association, April 22, 2022, https://www.americanbar.org/groups/health_law/publications/aba_health_esource/2021-2022/april-2022/eval-com/.
[8] U.S. Const. amend. XIV.
[9] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 359 (1905).
[10] Ibid.
[11] South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020); Tandon v. Newsom, 141 S. Ct. 1294 (2021).
[12] Michelle M. Mello and Wendy E. Parmet, “Public health law after Covid-19,” The New England Journal of Medicine 385 (2022): 1153, https://www.nejm.org/doi/full/10.1056/NEJMp2112193.
[13] 42 U.S.C. § 12112(a). Employers shall not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
[14] 42 U.S.C. § 2000e–2(a).
[15] Pregnancy Discrimination Act (PDA) of 1978 (October 31, 1978), https://www.eeoc.gov/statutes/pregnancy-discrimination-act-1978.
[16] 29 C.F.R. 1630.2(p).
[17] U.S. Department of Health and Human Services Office for Civil Rights, “HHS office for civil rights guidance on federal legal standards prohibiting disability discrimination in COVID-19 vaccination programs,” https://www.hhs.gov/sites/default/files/federal-legal-standards-prohibiting-disability-discrimination-covid-19-vaccination.pdf.
[18] U.S. Equal Employment Opportunity Commission, “What you should know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” December 16, 2020, https://www.eeoc.gov/wysk/what-you-should-know-about-COVID-19-and-ada-rehabilitationact-and-other-eeo-laws.
[19] National Federation of Independent Business v. Department of Labor, 142 S. Ct. 661 (2022).
[20] Occupational Safety and Health Administration, “COVID-19 vaccination and testing ETS,” https://www.osha.gov/coronavirus/ets2.
[21] Marlene Lenthang, “How COVID-19 vaccine policies have triggered lawsuits and workplace shutdowns,” ABC News, June 20, 2021, https://abcnews.go.com/Business/covid-19-vaccine-policies-triggered-lawsuits-workplace-showdowns/story?id=78204107.
[22] Bridges v. Houston Methodist Hosp., 543 F.Supp.3d 525 (S.D. Tex., June 12, 2021).
[23] See AJE Enter. LLC v. Justice, No. 1:20-CV-229, 2020 WL 6940381, at *5 (N.D.W. Va. Oct. 27, 2020); McCarthy v. Cuomo, No. 20-CV-2124 (ARR), 2020 WL 3286530, at *6 (E.D.N.Y. June 18, 2020).
[24] Michelle M. Mello and Wendy E. Parmet, “U.S. public health law – foundations and emerging shifts,” The New England Journal of Medicine 386 (2022): 805. https://www.nejm.org/doi/full/10.1056/NEJMp2200794.
[25] Worthington v. Fauver, 440 A.2d 1128 (1982).
[26] Mello and Parmet, “U.S. public health law.”
[27] 332 So.3d 1163 (LA 2022).
[28] “Author’s/Sponsor’s Statement of Intent,” S.B. 01669l, May 5, 2021.
[29] Relating to prohibited vaccine status discrimination and requirements for COVID-19 vaccines, H.B. 39, Texas Legislature (2021), https://capitol.texas.gov/tlodocs/87R/billtext/pdf/HB01687I.pdf#navpanes=0.
[30] Mitchell Ferman and James Barragán, “Texas bill to block COVID-19 vaccine mandates for employers failed in legislature after business groups rallied against it,” The Texas Tribune, October 18, 2021, https://www.texastribune.org/2021/10/18/texas-covid19-vaccine-mandates-bill/.
[31] “Conference Committee Report on House Bill No. 9077 / Senate Bill No. 9014,” Tennessee General Assembly, https://www.capitol.tn.gov/Bills/112/CCRReports/CC9001.pdf.
[32] COVID-19 immunization; prohibition on requirement, discrimination prohibited, H.B. 2242, Virginia Legislature (2021), https://lis.virginia.gov/cgi-bin/legp604.exe?211+ful+HB2242.
[33] Bryan Schott, “More anti-vaccine bills coming to the Utah legislature,” The Salt Lake Tribune, December 22, 2021, https://www.sltrib.com/news/politics/2021/12/22/more-anti-vaccine-bills/.
[34] Vaccine passports amendments, H.B. 60, Utah Legislature (2022), https://le.utah.gov/~2022/bills/static/HB0060.html.
[35] S.B. 156, Alaska Legislature (2021-2022), https://legiscan.com/AK/bill/SB156/2021.
[36] Vaccinations; evidence of immunity; prohibitions, H.B. 2029, 55th Arizona Legislature (2022), https://legiscan.com/AZ/text/HB2029/id/2462575(prohibiting state and governmental entities and business affiliations from discriminating against an individual based on vaccination status).
[37] Prohibit discrimination COVID-19 vaccination status, H.B. 21-1191, Colorado Legislature (2021), https://leg.colorado.gov/bills/hb21-1191(prohibiting government agencies and private businesses, including health insurers, from discriminating against clients, patrons, or customers based on their COVID-19 vaccination status).
[38] Discrimination on the basis of COVID-19 vaccination or post-infection recovery status, S.B. 594, Florida Legislature (2022), https://www.flsenate.gov/Session/Bill/2022/594 (prohibiting discrimination by governmental agencies and employers on the basis of COVID-19 vaccination).
[39] Relating to discrimination, H.B. 241, Hawaii Legislature (2021), https://www.capitol.hawaii.gov/Archives/measure_indiv_Archives.aspx?billtype=HB&billnumber=241&year=2021 (amending existing law governing employment discrimination to prohibit discrimination based on vaccination status).
[40] S.B. 287, Indiana Legislature (2022), https://legiscan.com/IN/bill/SB0287/2022 (prohibiting discrimination on the basis of COVID-19 immunization status, prohibits requiring a person to answer a question concerning the person's COVID-19 immunization status, and limits the retention of medical records concerning COVID-19 immunization status); Senate Bill 330 (providing “that certain acts by a person, an employer, or a governmental entity concerning an individual’s vaccination status or whether an individual has an immunization passport are against public policy”).
[41] An ACT relating to immunizations, H.B. 52, Kentucky Legislature (2022), https://apps.legislature.ky.gov/record/22rs/hb52.html (prohibiting employers from discriminating against an individual who declines immunization).
[42] H.B. 54, Louisiana Legislature (2022), https://legis.la.gov/legis/ViewDocument.aspx?d=1288490 (vetoed by governor).
[43] H.B. 1245 and S.B. 2394, Minnesota Legislature (2021-22), https://www.revisor.mn.gov/bills/bill.php?b=house&f=HF1245&ssn=0&y=2021 (“No agent of government or business shall treat differently, single out, deny opportunity, ostracize, stigmatize, or discriminate against an individual as a result of the individual’s decision on whether or not to receive a vaccine”).
[44] H.B. 1768, Missouri Legislature (2022), https://house.mo.gov/billtracking/bills221/hlrbillspdf/3736H.01I.pdf (prohibiting employers from discriminating against an employee in compensation or in a term, condition, or privilege of employment based on the employee's COVID-19 vaccination status); S.B. 1064, Missouri Legislature (2021), https://www.senate.mo.gov/22info/BTS_Web/Bill.aspx?SessionType=R&BillID=73228239 (stating that it is an unlawful employment practice for any employer to refuse an employee a reasonable accommodation from any requirement related to COVID-19 because of the employee's sincerely held religious, ethical, or moral beliefs. In granting an employee a reasonable accommodation, an employer shall apply the same standards as are required by federal law and regulations promulgated by the Missouri Commission on Human Rights for reasonable accommodations for disabilities).
[45] Prohibiting state and local governments from adopting certain mandates in response to COVID-19, and prohibiting employers and places of public accommodation from discriminating on the basis of vaccine status, H.B. 1224, New Hampshire Legislature (2022), https://legiscan.com/NH/bill/HB1224/2022 (prohibiting state and local governments from adopting certain mandates in response to COVID-19; and prohibiting employers and places of public accommodation from discriminating on the basis of vaccination status).
[46] Prohibits discrimination against individuals who have not received the COVID-19 vaccine, Assembly Bill A781 and S.B. 125, New Jersey Legislature (2022-23), https://www.njleg.state.nj.us/bill-search/2022/A781.
[47] The vaccine choice and anti-discrimination act, H.B. No. 248, Ohio Legislature (2021), https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_134/bills/hb248/PHC/02/hb248_02_PHC?format=pdf.
[48] Vaccine mandate prohibition bill, S.B. 1124, Oklahoma Legislature (2022), http://www.oklegislature.gov/BillInfo.aspx?Bill=SB1124&Session=2200 (prohibiting state agencies, political subdivisions, entities receiving government funds, hospitals, and private entities from discriminating against persons based on vaccination status).
[49] The medical freedom act, S.B. 417, Pennsylvania Legislature (2021), https://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2021&sessInd=0&billBody=S&billTyp=B&billNbr=0471&pn=1211.
[50] Relating to criminal offenses – mandatory vaccination agreement prohibited, H.B. 5989, Rhode Island Legislature (2021), http://webserver.rilin.state.ri.us/BillText/BillText21/HouseText21/H5989.pdf (adding “refusal of the individual to receive a vaccine or to provide proof of vaccination” to the list of protected classes).
[51] SC vaccination rights act of 2022, H.B. 4560, South Carolina Legislature (2022), https://www.scstatehouse.gov/sess124_2021-2022/bills/4560.htm (making it an unlawful discriminatory practice for a person or a governmental entity to refuse, withhold from, or deny to a person any local or state services, goods, facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities based on the person’s refusal to provide vaccination status).
[52] COVID-19 discriminatory practices-prohibition, S.F. 1003, Wyoming Legislature (2021), https://www.wyoleg.gov/2021Sp1/Introduced/SF1003.pdf.
[53] National Academy for State Health Policy, “State efforts to ban or enforce COVID-19 vaccine mandates and passports,” July 11, 2022, https://www.nashp.org/state-lawmakers-submit-bills-to-ban-employer-vaccine-mandates/.
[54] “50-State update on legislation pertaining to employer-mandated vaccinations,” Husch Blackwell, March 5, 2021, updated February 23, 2022,https://www.huschblackwell.com/newsandinsights/50-state-update-on-pending-legislation-pertaining-to-employer-mandated-vaccinations. (“Current and pending legislation varies widely by state in terms of who is shielded from mandatory vaccinations and under what circumstances. Some legislation would prohibit employer mandated vaccinations outright, some would permit mandated vaccinations only for employees who work in healthcare facilities or with medically vulnerable populations, and some would expand the federally recognized exemptions to include philosophical objections, objections of the conscience, and additional objections for medical reasons”).
[55] Executive Order GA-40 (October 11, 2021),
https://gov.texas.gov/uploads/files/press/EO-GA-40_prohibiting_vaccine_mandates_ legislative_action_IMAGE_10-11-2021.pdf.
[56] An act prohibiting discrimination based on a person’s vaccination status or possession of an immunity passport; providing an exception and an exemption; providing an appropriation; and providing effective dates, H.B. 702, Montana Legislature (2022), https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf.
[57] Netzer Law Office, P.C. v. State of Montana, 2022 WL 412447 (Mont. Dist., Feb. 1, 2022).
[58] Neelam Bohra, “Texas bill would make firms requiring COVID vaccine vulnerable to lawsuits,” Insurance Journal, October 15, 2021, https://www.insurancejournal.com/news/southcentral/2021/10/15/637498.htm.
[59] Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1091 (5th Cir. 1975).
[60] Katrin Schmelz and Samuel Bowles, “Opposition to voluntary and mandated COVID-19 vaccination as a dynamic process: evidence and policy implications of changing beliefs,” The Proceedings of the National Academy of Sciences 119, no. 13 (2022), https://doi.org/10.1073/pnas.2118721119.
[61] Sean D. McCabe et al., “Unraveling attributes of COVID-19 vaccine hesitancy and uptake in the U.S.: a large nationwide study,” medRxiv[Preprint] (2021), https://doi.org/10.1101/2021.04.05.21254918.
[62] David Cole and Daniel Mach, “We work at the A.C.L.U. Here’s what we think about vaccine mandates,” The New York Times, September 2, 2021, https://www.nytimes.com/2021/09/02/opinion/covid-vaccine-mandates-civil-liberties.html.
[63] Ezra Cohn et al., “The effect of a proof-of-mandate requirement, incentive payments, and employer-based mandates on COVID-19 vaccination rates in New York City: a synthetic-control analysis,” The Lancet 7, no. 9 (2022): E754, https://doi.org/10.1016/S2468-2667(22)00196-7.
[64] Andrew Solander, Alyana Treene, and Steph W. Kight, “GOP courts anti-vaxxers with jobless aid,” Axios, November 29, 2021, https://www.axios.com/2021/11/29/republicans-unemployment-unvaccinated-biden?utm_source=twitter&utm_medium=social&utm_campaign=editorial&utm_content=politics-unvaccinated.
[65] Cristina Marcos, “Greene apologizes for comparing vaccine rules to Holocaust,” The Hill, June 14, 2021, https://thehill.com/homenews/house/558393-greene-apologizes-for-comparing-vaccine-rules-to-holocaust/. (“I believe that forced masks and forced vaccines or vaccine passports are types of discrimination. And I'm very much against that type of discrimination”).
[66] Caitlin Owens, “Republicans push to ban “discrimination” against unvaccinated people,” Axios, July 12, 2021, https://www.axios.com/2021/07/12/republicans-coronavirus-vaccines-discrimination-law-states.
[67] Pamela Abbate-Dattilo, “Navigating the legal challenges of COVID-19 vaccine policies in private employment: school vaccination laws provide a roadmap,” Mitchell Hamline Law Review 47, no. 3 (2022): 1014, 1019, https://open.mitchellhamline.edu/mhlr/vol47/iss3/5 (discussing “the administrative headache of enforcing a mandatory vaccine policy and the required exemptions”).
[68] Vaccine choice and anti-discrimination act, H.B. 248-11, Ohio Legislature (2021), https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HB-248.
[69] Owens “Republicans push to ban ‘discrimination’ against unvaccinated people.”
[70] “Biden-Harris administration bolsters monkeypox response; HHS Secretary Becerra declares public health emergency,” U.S. Department of Health and Human Services, press release, August 4, 2022, https://www.hhs.gov/about/news/2022/08/04/biden-harris-administration-bolsters-monkeypox-response-hhs-secretary-becerra-declares-public-health-emergency.html.
[71] Debra Cassens Weiss “Nearly 800 COVID-19 lawsuits have been filed, according to law firm’s tracker,” ABA Journal, May 4, 2020, https://www.abajournal.com/news/article/nearly-800-covid-19-lawsuits-have-been-filed-according-to-law-firms-tracker.
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