It’s entirely possible that we could have a COVID-19 vaccination by the end of the year, according to Dr. Anthony Fauci, who told Congress in late July that he was “cautiously optimistic” that one would be ready as we head into 2021. While that’s potentially excellent news, for a vaccine to effectively achieve herd immunity, it means that people actually have to, well, get vaccinated. So, does that mean a mandatory vaccine to help fight the coronavirus is coming?
For many, getting the vaccine might seem like a no-brainer, but between the anti-vaccination and anti-mask movements, this might be easier said than done.
“What concerns me is when I see the types of fights over wearing a mask,” Debbie Kaminer, a law professor at Baruch College in New York, told Healthline. “I can’t even imagine what would happen over vaccines.”
Already, various polls have reported that only about slightly more than half of the United States population would be interested or willing to get a vaccine, while roughly a quarter of Americans are “not very interested” or “not at all interested.”
This presents a dilemma that begs the question of whether people can actually be forced, whether by the government or their own employers, to get a COVID-19 vaccine.
The short answer is yes, it is entirely within bounds for government institutions to make vaccinations mandatory, as many schools and employers already require vaccinations for diseases such as measles and tuberculosis. Likewise, there are already vaccination requirements for traveling abroad to most countries.
There is Supreme Court precedent for a mandatory vaccine
Kaminer points to the 1905 landmark case Jacobson v. Massachusetts, in which the U.S. Supreme Court ruled in favor of a state law that required all adults living in Cambridge to get a smallpox vaccine or face fines. The court’s decision hinged on the fact that “the mandatory vaccination law was necessary to promote public health and safety” and that an individual’s liberty rights as dictated by the Constitution of the United States are not absolute.
Though the case is more than a century old, current-day courts continue to cite it in handing down other vaccination-related rulings, such as in 2019 when New York City issued a measles vaccination mandate in response to a local outbreak.
As far as employers go, that’s where things get a bit more sticky. Though private employers have “significant flexibility” when it comes to requiring vaccinations, they might initially be hesitant to do so out of fear of employee backlash or discrimination lawsuits—even if those theoretical lawsuits may not hold water.
Title VII of the 1964 Civil Rights Act, which prohibits religious discrimination in the workplace, states that “employers are not required to accommodate religious employees if doing so involves more than a de minimis, or minimal cost.”
For obvious reasons, the risks of having an unimmunized workforce present more than just a potential “minimal cost” to employers.
Healthcare institutions, on the other hand, might be less reluctant to require employee vaccinations, since some already require flu shots. However, Dr. William Schaffner, an infectious disease expert at Vanderbilt University, still sees the odds of it actually happening as unlikely.
“If you come on our property at Vanderbilt Medical Center and want to enter a building, you’re going to have your temperature taken, but that’s very different than obliging people to get a vaccine, and I don’t think that will happen,” Schaffner told Healthline. “There may be some subpopulations where there is a requirement, but I would be hugely surprised if there’s a broader requirement”
Schaffner also doesn’t have much hope in the federal government enforcing a broad vaccination requirement, between potential outcry from anti-vaxxers and conspiracy theories. “I don’t think anybody is going to compel people to get a vaccine,” Schaffner added.
A more likely outcome is that vaccinations might be required at a local level, such as to use public transportation or to go to a gym—which may persuade those on the fence that refusing to get vaccinated is just not worth the overall hassle.
Education will play an important role
To combat widespread skepticism over vaccinations, Kaminer says that the “ideal scenario” would be compliance through public education. Unfortunately, if we wait until a vaccine is available, it might be too late. Some percentage of this country will still buck the idea of a mandatory vaccine.
“At the very least, there should be an enormous public education campaign going on right now, and that really hasn’t been happening the way it should,” she said.
Another strategy would be to enlist prominent public figures to help spread pro-vaccination messaging, such as how Elvis Presley helped polio vaccinations skyrocket after getting vaccinated on The Ed Sullivan Show in 1956. After the recent measles outbreak in New York City, the Orthodox Jewish Nurses Association made strides by convincing many residents of Orthodox Jewish neighborhoods to get the measles vaccine.
Another potential element in taking away a possible stigma of a COVID-19 vaccine would be to make it free to the public and widely available at convenient locations. But given the challenges we’ve seen with widespread testing, it remains to be seen whether this strategy would be attainable.
In either case, if the bottom line is that the virus will only go away if enough people get vaccinated, now is the time for government and private employers to develop these policies that will soon become crucial.
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