In less than two months, a vaccine mandate covering approximately 84 million private-sector workers is scheduled to go into effect. The mandate is currently tied up in court, but that could change at any time. This may cause great uncertainty for some, and a basic understanding of the law can help those potentially affected to plan ahead.
Bear in mind that this is meant to explain what the government can do, not what I think it should do.
The baseline rule for vaccine mandates has been virtually unchallenged for more than 100 years. In 1905, a gentleman named Henning Jacobson was convicted of violating a Massachusetts law requiring anyone 21 or older to get vaccinated for smallpox.
Jacobson took his case to the Supreme Court, believing that the state couldn’t compel him to vaccinate. The court disagreed, ruling that states have the power to pass and enforce laws necessary to protect public health, including mandatory vaccination.
President Biden is in a slightly different situation. The Jacobson case confirmed that states have the power to mandate vaccination under the 10th Amendment of the United States Constitution, but didn’t explicitly extend that power to the federal government. That may be cold comfort to those hoping to avoid the mandate – or welcome relief to those who support it – because if Biden can’t enforce his mandate, Gov. Kathy Hochul could certainly issue an ironclad order of her own.
It’s important to note that personal freedom is not recognized as a legal defense to mandatory vaccination. The law views protecting public health as one of government’s primary responsibilities, and has repeatedly approved actions to protect communities from disease that would be unacceptable in nearly all other circumstances.
Even religious freedom seems to have its limits in the face of a dangerous outbreak, as we can gather from New York’s 2019 repeal of the exemption based on religious belief following a severe measles outbreak.
Smallpox and Covid-19 are not the only two afflictions for which the government has required the public to roll up our sleeves in service of achieving herd immunity. The vast majority of parents will recall presenting proof that their child had been inoculated against measles, mumps and rubella in order to enroll in kindergarten. Most states also require children to be vaccinated against meningitis by the seventh grade.
It’s uncertain whether the president’s mandate will survive the courts. But, hesitant private-sector workers should be aware that the governor could issue one too, and the result of her order would not be uncertain at all.
Eric J. Mikols is a lawyer in Buffalo.