Employer vaccine mandates

Although the debate about employer vaccine mandates in the United States recently centered upon COVID-19 requirements, mandates and the debate about them are as old as the country itself.

The first American “vaccine” mandate was issued by Gen. George Washington in 1777. During that year of the Revolutionary War, Washington ordered Continental Army troops to be inoculated against smallpox with the precursor to the smallpox vaccine. According to Andrew Wehrman, associate professor of history at Central Michigan University, the soldiers themselves “were the ones calling for it.…There’s no record that I have seen—and I’ve looked—of any soldier turning it down, protesting it.” [1]

Continental Army soldiers may have welcomed inoculation, but plenty of other people did not. After the minister Cotton Mather promoted and introduced smallpox inoculation in Boston in 1721 to battle a deadly outbreak of the viral disease, a man threw a bomb through a window of his home with the note “Cotton Mather, you dog, dam you! I’ll inoculate you with this; with a pox to you.” In fact, most of the doctors in Boston were against inoculation; they even formed an organization called the “Society of Physicians Anti-Inoculators.” The physician Benjamin Waterhouse introduced a smallpox vaccine into the U.S. in 1800, courtesy of his friend the British discoverer of the vaccine, Edward Jenner. The Founding Fathers welcomed the innovation, though too late in the case of Benjamin Franklin, who had battled inoculation until his uninoculated four-year-old son died from smallpox. “I long regretted bitterly and still regret that I had not given [the smallpox vaccine] to him by inoculation,” admitted Franklin in his 1771 autobiography. [2] [3] [4] [5] [6] [7]

Most early vaccine mandates were implemented by state and local governments. For example, in the 1850s, Massachusetts was the first state to mandate vaccines for schoolchildren. By 1900 half of all U.S. states had school vaccine mandates, and by 1980 all U.S. states had them. [2] [8] [9]

The debate about mandates had taken full form by the end of the 1800s, and dissenting opinions looked much like contemporary arguments. According to the journalist Maggie Astor, “Some Americans opposed mandates on the grounds of personal liberty; some because they believed lawmakers were in cahoots with vaccine makers; and some because of safety concerns.” [1]

In 1905 the U.S. Supreme Court entered the debate, ruling in Jacobson v. Massachusetts that compulsory vaccination laws enacted by state and local governments were constitutional and enforceable. Justice John Marshall Harlan, who wrote the majority opinion, argued that individual liberty is not absolute: “The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.…The fundamental principle of the social compact…[is] that all shall be governed by certain laws for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of any one man, family or class of men.” The ruling allowed for medical exemptions, and it has been considered the authority on the subject ever since. School vaccine mandates were subsequently upheld by the Supreme Court in Zucht v. King (1922). [2] [10]

During World War II the U.S. military began mandating a host of vaccines for service members, including those for typhoid, yellow fever, and tetanus. As of 2021, the U.S. military required service members to get 18 vaccines, including ones for adenovirus, COVID-19, hepatitis A, hepatitis B, flu, meningococcal, MMR (measles, mumps, and rubella), polio, tetanus-diphtheria, and varicella (chicken pox). Members may be required to be vaccinated against other diseases, depending on service location: anthrax, haemophilus influenzae type B, Japanese encephalitis, pneumococcal disease, rabies, smallpox, typhoid fever, and yellow fever. Civilian military employees have also been subject to vaccine mandates, including the COVID-19 vaccine. The U.S. military allows administrative, medical, and religious vaccine exemptions, though they are rare. [10] [11] [12] [13] [14] [15]

Other than the U.S. military, health care facilities are the most common type of employer to mandate vaccines. For years, some health care workers have been required to have multiple vaccinations, including those for hepatitis B, influenza, MMR (measles, mumps and rubella), pertussis, pneumococcal disease, and varicella. [16]

In recent years health care workers, among employees in other industries, were increasingly required to have COVID-19 vaccinations. A Dec. 2, 2021, survey found that 25% of employers planned on implementing a COVID-19 vaccine mandate, regardless of a federal mandate. And 32% planned to implement a mandate only if the federal government required employee vaccination. A further 33% said they would enforce a testing protocol rather than mandate COVID-19 vaccines. [17]

Many states and D.C. implemented COVID-19 vaccine or vaccine-or-test mandates as employers. Generally, the mandates covered executive branch staff, teachers at state schools and preschools, state-run health care facility employees, and other state government employees. Conversely, several states enacted laws banning employers from implementing such mandates. [18] [19]

The U.S. Supreme Court ruled on Jan. 13, 2022, that the Biden administration didnot have the authority to impose a COVID-19 vaccine-or-test mandate. The White House mandate would have required people who worked for employers with 100 or more employees to either be vaccinated or be tested weekly and to wear a mask indoors if unvaccinated. The Court allowed the White House COVID-19 vaccine mandate to stand for medical facilities that took Medicare or Medicaid payments. In the wake of this ruling, many large companies rethought the implementation or enforcement of a COVID-19 vaccine mandate. Many companies, including Carhartt, CitiGroup, and United Airlines, maintained their mandates, while others, including Boeing, GE, and Starbucks, did not.  [20] [21]

Whatever the status of COVID-19 vaccine mandates, many employers have legally required certain employees to be vaccinated against other diseases. The U.S. Equal Employment Opportunity Commission explained that employers may require employees to be vaccinated as long as the businesses “comply with the reasonable accommodation provisions of the ADA [Americans with Disabilities Act] and Title VII of the Civil Rights Act of 1964 and other EEO [Equal Employment Opportunity] considerations.” Those accommodations include medical and religious exemptions. [22]

Discussion questions

1. Should employers mandate vaccines? Consider specific types of employers (such as health care, the military, schools, and restaurants) as well as various diseases (COVID-19, the flu, or measles, for example). Explain your answer.
2. Should employers be involved in employee health in other ways? Consider incentives to stop smoking or to lose weight, for example. Explain your answer.
3. What policies—from mandates to educational and incentivizing measures—are best to contain a communicable disease like COVID-19 or the flu? Consider various kinds of employers. Explain your answer.