The Coming Vaccination Requirement for Larger Employers

With the reported surge and perseverance of Delta variant cases, the Biden administration has directed the Department of Labor and its Occupational Health and Safety Administration (OSHA) to develop emergency regulations for larger private employers (more than 100 on payroll) to require vaccination or weekly testing for every worker. The proposal includes mandatory paid time off for employees to obtain vaccination. Once issued, the expanded rules will affect an estimated 80 million individuals.

While the initiative is sure to have its detractors, Supreme Court precedent has long supported such mandatory directives.  In Jacobson v. Massachusetts (1905), a Court majority ruled against an individual who had been fined $5 for refusing a mandatory smallpox vaccine for himself and his son.  Justice Harlan wrote:

“The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

Today’s Supreme Court is likely to uphold that precedent for mandatory COVID vaccination initiatives.  For example, last month Associate Justice Amy Coney Barrett declined to invalidate an Indiana University vaccination mandate following a lower court ruling against the challengers that had cited Jacobson.

Take away:  With COVID’s continuing persistence, employers of any size should monitor closely the expansion of “mandatory mandatory” vaccination directives at all governmental levels.  See, e.g., https://www.osha.gov/coronavirus for the coming federal rules as above. With the vaccines now widely available and gaining greater certification, the prevailing issue is not whether businesses should reopen as it was a year ago.  Focus now is upon balancing public health and safety measures with managers and workers understandably tired of precautions as they return to pre-pandemic life.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also,

• Staying Abreast Workplace Pandemic Policies & Protocols – Our COVID-19 Forms, and Constant Updates (August 27, 2021)
• Tighten Up, Required Vaccination for Certain Health Care Workers (August 13, 2021)
• Health Care Workers Must Vaccinate or Regularly Test (July 30, 2021)
• Indoor Face Coverings Resurrected – LA County Mandates More Masks (July 29, 2021)

Tim Bowles
September 10, 2021