Vaccine mandates, or requirements, have existed in certain environments prior to our present pandemic. For example, public school students are required by their respective states to get vaccinated against a host of diseases (mumps, measles, rubella, hepatitis B, chicken pox, polio, etc.), though exemptions are allowed on a state-by-state basis. Health care workers in some settings (certain states or counties or in specific hospitals and other private facilities), are required to receive certain immunizations (annual flu shots, for example), too.
Students and healthcare workers are probably the most likely to face COVID-19 vaccine mandates of some sort, according to both Stephanie Morain, PhD, MPH, assistant professor at the Center for Medical Ethics and Health Policy at Baylor College of Medicine, and Timothy Brewer, MD, professor of medicine and epidemiology at UCLA.
Both experts emphasize that precedent exists for vaccine mandates in the healthcare space, and Dr. Morain cites the Kentucky case as compelling evidence of the need for such mandates. Requiring vaccinations for this population is a more straightforward proposal than it might be for other demographics, too, due to the fact that healthcare workers operate under ethical requirements to do no harm to patients, says Dr. Morain. “We know that the risk of transmission to patients can be high, so certainly we can see why there’s a duty for healthcare workers [to take preventative measures such as vaccination], particularly because many of their patients may be individuals who are immunocompromised and for whom a vaccine might not be as effective as it would be in a healthy person,” she says.
Listen to a biochemist explain how vaccines work:
Dr. Brewer is currently required by the county in which he works to either receive a flu shot annually or wear certain personal protective equipment (PPE) during flu season. He believes it’s likely that similar mandates will be issued with respect to COVID-19 vaccines.
As for student mandates, Dr. Morain says they’re likely to crop up on college campuses due to the close proximity of students, a desire to return to pre-pandemic academic and social norms, and the great expense pandemic safety measures have inflicted on universities. School age children may also face mandates for many of the same reasons; however, this is a bit of an unknown at this point, says Dr. Morain, given that children between the ages of 12 to 15 were just recently approved for the Pfizer-BioNTech vaccine, and children younger than that are not yet eligible for vaccination.
There is precedent for mandated vaccinations in another demographic as well. According to Dr. Morain, active-duty military forces are required to get certain vaccines, including the annual flu shot. “This policy is reportedly strictly enforced within training camps,” she says. These vaccine mandates have withstood legal challenge, too. “For example, in United States v. Chadwell, which examined whether U.S. Marines could refuse to be vaccinated based on religious belief, the Navy Board of Review court (now the Navy-Marine Corps Court of Criminal Appeals) determined that religious beliefs were not above military orders,” says Dr. Morain.
The COVID-19 vaccine is a little different than prior vaccines that have been mandated to troops, however, in that it’s thus far only approved for emergency use. For this reason, it has not yet been made compulsory, as a mandate under these circumstances would be illegal. And while President Biden indicated last month that he may issue a mandate soon—which would be legal—it has yet to surface.
Vaccination rates among military personnel are currently trending in the right direction—they jumped up by 55 percent in the last month—but only about half of American troops have currently received at least one shot. According to Dr. Morain, there’s a compelling argument to be made for mandating that the rest participate. “There are ethical justifications that support requiring COVID vaccines by military service members, particularly those on active duty and/or living in close living conditions, given the high risk of transmission in these environments,” she says. “This high risk of transmission means that those who refuse vaccination present an elevated risk of harm to others, including other military service members, as well as those in the surrounding communities.”
Similar arguments could be made for mandating the vaccination of police officers, for whom vaccination rates are lower than those of the general public despite the high rates of comorbidities within police forces which make officers more susceptible to severe disease, hospitalization, and death from COVID-19. (Alarmingly, police officers were more likely to die of COVID-19 last year than of all other causes combined.) Plus, unvaccinated police officers may put those they interact with at risk. To this end, Dr. Morain notes that the ethical arguments for inoculating police officers are most compelling with respect to those who interact with incarcerated individuals given the high risk of transmission in jails and prisons and the dependent status of the incarcerated. “The state is held to have a legal duty to provide health care for incarcerated persons,” she says. “This should include protection from harms, including from the harm of COVID transmission.”
According to the International Association of Chiefs of Police, police leaders can require their employees to be vaccinated without violating any laws; however, any such policy is up to the discretion of an individual police department, and there are no blanket requirements (or possibilities for such blanket requirements) that would cover all officers.
Outside of these major buckets—healthcare workers, students, military personnel, and police officers—Dr. Brewer also predicts that private organizations such as cruise lines may require vaccinations for their staff and guests, and Dr. Morain says she’s seen some talk of Uber requiring vaccines for its drivers. “I think we’re going to see a spectrum of organizations—some at the governmental level, some at the county public health department level, some at the organizational level—recommending, if not actually requiring, vaccination,” says Dr. Brewer.
There is considerable controversy around, and resistance to, the idea of any type of mandate, however. The state of Texas, for example, has already prohibited any state agency or organization receiving state funding (like a public university) from requiring proof of vaccination. Private institutions in Texas can still require vaccinations, but some—like Houston Methodist Baytown Hospital—are already facing legal battles for doing so.
Should a state choose to go in the opposite direction and mandate COVID-19 vaccines in certain settings, it’s within their right to do so thanks to precedent set by the Supreme Court with Jacobson v. Massachusetts. The case concerned a Massachusetts law from the early 1900’s requiring that Cambridge’s population receive smallpox vaccines in the face of an outbreak. The law was challenged in the Supreme Court, which ultimately upheld the right for states to mandate vaccinations as long as they “didn’t go so far beyond what was reasonably required for the safety of the public.”
Still, Dr. Morain points out that a vaccine mandate doesn’t mean someone will be held down and administered a shot against their will. Instead, she says, it’s simply a condition of participation, whether that be in an academic environment, place of employment, or elsewhere. In some cases, accommodations may be offered, too, Dr. Morain adds—for example, the option of wearing additional PPE in lieu of getting the vaccine, or being subjected to regular testing.
And while mandates may certainly make sense in some settings, both experts point out that the focus should really be on getting more people to voluntarily opt in to vaccination. “In an ideal world, we shouldn’t have to require anybody to get vaccinated against SARS CoV-2 because everybody would want to do that to prevent not only themselves from getting potentially sick or hospitalized but also protecting the community and those around them,” Dr. Brewer says. “We need to do a better job of understanding the reluctance of some groups or individuals to be vaccinated, and figure out how can we reach them through trusted peers and providing appropriate information to address their concerns.”