In early February, three bills in front of the North Dakota Legislature were defeated. The bills, which were quietly introduced last month, aimed to block businesses from requiring their employees or customers to get coronavirus vaccinations.
North Dakota is not the first state to take up the issue of requiring vaccinations; as vaccinations roll out across the country, lawmakers and public health experts are looking at whether new legislation can or should mandate them. Or, as was the case in North Dakota, whether legislation can block a vaccination requirement.
Since the pandemic began, dozens of bills addressing vaccination laws have been introduced across the country, many of which would make it more difficult to administer or enforce vaccinations for adults. Legislators in at least 27 states have introduced bills that would block employers from requiring vaccinations. Many of the bills have been rejected. Some states, like Florida, have also sought to prevent businesses, such as airlines, from denying services to people who have not been vaccinated.
No vaccinations — against the viruses that cause Covid-19 or any other disease — are mandated by the federal government. Nor do state governments dictate that all residents get certain vaccinations.
Where the government does come into play is for certain groups of people — specifically, children attending public school and health care workers. Most states have vaccination requirements for both groups, although whether people can be exempt on religious or philosophical grounds varies state to state.
Private businesses, however, are allowed to require vaccinations as they see fit, under the protection of the U.S. Equal Employment Opportunity Commission. People with disabilities or certain medical conditions and those whose religious beliefs do not allow vaccinations are federally exempt from the mandates. Beyond that, state laws can determine what other types of exemptions are permitted.
"We have a long history of vaccine requirements in the workplace. It's a health and safety rule, just like wearing gloves," said Dorit Reiss, a professor at the University of California Hastings College of the Law in San Francisco, who focuses on legal and policy issues related to vaccines. "Employers have a baseline duty to create a safe environment for their employees and patrons."
That is why airplane pilots are tested for drugs and certain states require hospital workers to get the flu vaccination, Reiss said. If reasonable accommodations cannot be made for someone who is legally exempt from vaccinations to safely work for a business — such as working from home or wearing extra protective equipment — the employer has a right to terminate the employee.
"Accommodating doesn't mean you treat everyone the same," said Reiss, giving the example of someone who is unable to wear a mask in a grocery store. "You can bring groceries outside to someone rather than allowing them in the store without a mask."
A growing minority
The pandemic has sparked a newfound interest in vaccination legislation among some legislators, some of whom also pushed back against mask mandates and other prevention strategies.
"There is a small but loud group of people who are against vaccination in any way, shape or form," said Kylie Hall, a project manager at the North Dakota State University Center for Immunization Research and Education, who is working with the North Dakota Health Department on coronavirus vaccinations and operations.
There is a small but loud group of people who are against vaccination in any way, shape or form.
"That group of people is small, but with Covid-19, we've also seen a movement of people who don't believe that the virus is real or don't believe that masks work or are dangerous and don't believe the tried-and-true science behind the recommendations," Hall said. "A subset of these people are latching onto this small subset that oppose all vaccinations, and, though still a minority, that movement is pulling in more people than we would usually have with just the people who are against vaccines."
Republican state Rep. Jeff Hoverson was among a group of North Dakota legislators who consulted with the Informed Consent Action Network, an anti-vaccination organization, when they drafted and defended six vaccination-related bills, all which were defeated in early February. Three of the bills addressed businesses' right to mandate vaccinations, either among employees or patrons.
"I believe that the virus is real, but my concerns get back down to the government mandating things. Masks, lockdown and vaccines are particularly troublesome from my perspective," Hoverson said. He also said he is worried that businesses such as airlines will require mandatory vaccinations, although no airline so far has said it will.
Hall said it is premature to introduce legislation that would prevent employers or businesses from mandating vaccinations before there are enough vaccine doses to go around and before companies have implemented such mandates for patrons.
She said she also worries that misinformation that inaccurately suggests that vaccines are unsafe is driving legislation that would limit vaccination mandates and may deter people from getting vaccinated.
Some want stronger vaccination enforcement
Other legislation has addressed the potential for states to mandate vaccinations, although such enforcement would be a long shot.
A bill introduced by New York Assembly member Linda B. Rosenthal would allow the State Health Department to enforce vaccinations among healthy adults if the vaccination rate is not high enough to create enough immunity. The bill does not, however, propose a penalty for noncompliance. (Bills in Alabama, Florida, Tennessee and Wisconsin, on the other hand, would make it illegal for their state health departments to enforce coronavirus vaccination mandates.)
"Vaccinating against Covid-19 is the only way out of this pandemic, and being vaccinated not only protects you, it protects people who cannot get vaccinated," Hall said. "While mandates are being explored in states like New York, I would hope that public health educational campaigns are pursued to their fullest extent and every effort will be made to vaccinate individuals at their own will before any public mandates are considered."
Reiss said she expects that most businesses will not require their employees or patrons to be vaccinated. "They may incentivize it, but very few will mandate it, because of the extra work that it will require," she said.
Mandating vaccinations would require businesses to dedicate resources to determining exceptions to the rules and to potentially fight challenges in court.
But some businesses, she argued, should — and probably will — mandate vaccinations for employees.
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Nursing homes and correctional facilities have legitimate reasons to require vaccinations for employees because they work with very dependent or captive, high-risk and vulnerable populations, Reiss said. Both industries, as well as meatpacking plants, have been the sites of large Covid-19 outbreaks.
Still, she said she expects any mandates to be challenged in court, because the current laws have not been tested in the context of a pandemic. Updates to Equal Employment Opportunity Commission vaccination guidelines suggest but do not explicitly state that the coronavirus vaccination is subject to the same employer rules as other vaccinations.
One outstanding question, however, is whether a vaccination can be required before it is officially approved by the Food and Drug Administration. The two vaccines available in the U.S., from drugmakers Pfizer-BioNTech and Moderna, have been granted emergency use authorization from the FDA, not full approval.
"It would be good to know how the courts will interpret this situation with emergency use authorization, because this isn't the last pandemic that will pop up," Reiss said. "It could go either way, but either way, we do need a precedent."