o COVID - 19 pandemic not over for the U.S. but Delta variant means that the war has changed, as Leaked CDC slides made clear. The development and production of COVID 19 vaccines are an achievement on the scale of the Manhattan Project, but unless and until more of the U.S. public is vaccinated infections, hospitalizations, and deaths are likely to increase in scale across much of the country. After an impressive roll out, our vaccination rates have stalled. Canada, which had faced difficulties early on getting enough doses and hence started late in mid-July when earlier than the U.S. had surpassed Canada both in first dose and full vaccinated and enters August much better poised to face Delta.
In the face of these challenges, the Biden White House and the country's public health infrastructure is struggling with how to drive up vaccine rates. The result has been a political embrace of a word that had seemed to have been slowly thrown away: 'Mandates. Last week President Biden announced that the Federal government would require federal employees to attest they have been vaccinated against the coronavirus or otherwise have to comply with rules on mandatory masking, distancing, weekly testing, and other health measures. Major companies like Google, Facebook and Lyft are also required to have vaccine for their workers. Many universities already have to require vaccination unless a religious or medical exemption is granted. Indeed, 47% of ABA-accredited law schools have already done so and we should expect more companies and institutions to join the fold as more news emerges from Delta.
One thing that has held some employers and universities back has been the question of whether such mandates are lawful — Houston Methodist Hospital faced a lawsuit from over 100 workers who did not want to be vaccinated. Some students at the University of Indiana challenged that school's mandate as unconstitutional. But while every lawyer learns to couch advice with 'it depends' and 'it depends', the recent weeks have provided assurance that such mandates can be put in place, a claim that legal experts have been making for months.
At the turn of the 20th century some schools and employers required proof of smallpox vaccination, including a'smerge the scar' requirement when there was concern about forgeries of documents. Instead of saying that the state may impose vaccination requirements, a point the U.S. Supreme Court confirmed in 1905, opposing mandates focused on the fact that current COVID-19 vaccines have been approved as part of the USDA Emergency Use Authorization Process and not yet authorized as a full Biologics License Application. That may soon change with signs that FDA could give a BLA to Pfizer's vaccine in which case this argument would go away. In any event, the first court to rule on it, the U.S. District Court for the Southern District of Texas, weakly rejected the position 'EUA no mandate' in the Houston Methodist Case. It held that the EUA statute 'neither restricts nor expands the responsibilities of private employers; in fact, it does not apply at all to public employers like the hospital in this case. The court rejected the claim that this was coercive and human experimentation.
This conclusion was further bolstered by the release of memo from the U.S. Department of Justice's Office of Legal Counsel who was asked to weigh in for the President on whether the law allows mandating a vaccine authorized under an EUA and not yet receiving a BLA. The memo decisively concludes that relevant provision of the EUA statute 'entitles only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines subject to EUAs. While this determination is not binding on courts, its effective analysis is likely to be persuasive and shows the views of the executive branch on the question.
What about state entities like public universities or government offices? Those who oppose vaccination mandates can raise constitutional claims because they are state actors. On July 18, 2021, the U.S. District Court for Southern District of Indiana rejected such a challenge to Indiana University vaccine mandate in a thorough 101 page opinion authored by a judge appointed by President Trump. The opinion was respectful and rejected students' claims, but ultimately took it seriously, writing:
This university policy isn’t forced vaccination. The students have options: taking the vaccine, applying for medical exemption, applying for religious exemption, applying for a medical Deferral, taking one semester off or attending another University. This policy applies only for the fall 2021 semester course. After being advised of the risks and benefits of vaccines, students may make their choice in cases where informed consent is not disclosed. The court recognizes that the decision for certain students may prove a difficult choice; however, a choice nonetheless. The choice isn't so severe as to constitute irreparable constitutional harm. Although it is not a condition to attend this fall, it proves a condition by the Constitution.
These court decisions pave the way for vaccine mandates that are well tied to public health and construct religious and disability-related exemptions and accommodations. All the cases thus far have focused on claims that mandates violate law, but much of the legal firmament that guides our lives is state law. What however, has nothing mandated in federal law for non-federal employees, at least not to the moment that states can seek to block employers or universities from instituting such mandates; Several states have introduced or passed bills to prohibit employers and universities from mandated vaccination or allowing the use of vaccine passports.
The details vary and matter — some apply only to private institutions as a private one for example ; but where a state has enacted a valid ban on vaccination mandates, employers or universities may be prohibited from imposing those mandates. For example, the state passed a bill in Florida that states that entities'may not require patrons or customers to provide any documentation certifying COVID - 19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state with similar provisions for government and educational institutions. This means that those entities have already failed to require proof of vaccination, thus frustrating any attempt at vaccine mandates, though some in the state have tried to defie the law. In Texas, a recently passed state law prevents public universities, but not private schools from requiring vaccinations. These odd patchworks will unfortunately continue because in the absence of a contrary state law requiring vaccine mandates or that vaccine verification be permitted or in some other way preempting federal law in the area, the state law governs. So far, there has been no move for the federal government to pass such a conflicting law, and given the current structure of Congress any attempt seems unlikely to succeed. Predictably but tragically, many states that have been the most active in trying to fight mandates are also places where vaccination is lowest and Delta poses the most serious threat.
Even where the law permits clearly requires vaccination mandates, there are many things that could hold an employer or university back. Do they have a tight market such that they might lose employees to competitors? We have already seen mixed reactions from labor unions. Like all public health interventions, mandates must be carefully reticulated on the ground to the facts including vaccination rates and Delta spreading. This is the latest legal decision but will hopefully free us up to have that data-driven conversation outside of the shadow of lawsuits.