Q&A: WVU Law Professor On The Legality Of Vaccine Requirements
Requiring West Virginians to get the COVID-19 vaccine is not something Gov. Jim Justice wants to do right now.
But the governor, other public institutions, and private employers all have the authority to mandate vaccinations. U.S. courts are already ruling that institutions willing to go through with a vaccine mandate can do so legally.
“We have one of the best vaccination rates for five year olds. And that's because we mandate these vaccines with very few exceptions,” said Joe Evans, Marshall Health’s chief medical officer.
To better understand the legality of vaccine mandates, health reporter June Leffler spoke with Anne Lofaso of WVU’s law school. She is the current Arthur B. Hodges Professor of Law there and specializes in labor law.
Leffler: Simple question, I guess with a lot of answers. Is it legal to mandate vaccination in certain settings?
Lofaso: Yes, it is. The analysis is different depending on what setting. If you're a private employer and say “As a condition of employment, you have to have the vaccine,” that would be okay. We have a rule in this country that says that an employer can fire an employee for any reason, good or bad, or for no reason at all. We have some exceptions to that, for example, an employer cannot fail to hire you because of your gender or because of your race. So there's certain federal limitations on those things. Generally speaking, you're not entitled to your job. So if you are like the vast amount of people in this country, you don't have a contract of employment, you have no entitlement to your job, then a private employer can fire you at will.
The FDA is only given emergency release to the vaccine. So that's a little bit trickier, but it will become a moot question once the FDA actually approves these vaccines, which is probably going to be fairly soon. So if an employer wants to be on the safe side, they would maybe wait for it not to be emergency authorized.
It's a little trickier when the employer is a government entity, the state's going to be much more careful about this for various reasons. One is because it's political, it's much more politically responsive, right? So if you don't like what the state is doing, you can vote them out and things like that. The state can always act when it's acting in the interest of public health. In 1905, the Supreme Court said that Massachusetts was allowed to have a law that delegated responsibility to each city to determine whether it can fine people who did not get vaccinated for the smallpox. The Supreme Court said, “Yes, this is a minor infringement on your liberty interest. But there's always infringement on Liberty interests, if you want to live in a society.” And we live in a society, we have a social compact. In order to be truly free, there's going to be some infringement on your liberty so we can all live together. And one of those is that when there's an epidemic, and we can all die from that epidemic, that we can mandate vaccines.
Leffler: Could you just talk a little bit more about schools specifically?
Lofaso: So kids in order to go to public school, in the state, have to be vaccinated, and that's probably true in almost every state. The question is why would coronavirus be different? And it's hard to say why people think it's different. I think part of it is that it's been politicized. When I was a kid, you got chickenpox. You didn't have a vaccine. There's a vaccine now for chickenpox. I don't remember anyone getting upset when they said “Okay, we have a chickenpox vaccine. Now you have to take it or you can't go to school.” So why are we having a problem about coronavirus now? So you can say “Well, it was so quick.” Once it's fully authorized by the FDA, then I think schools might go down this road.
So let's say the people of West Virginia just don't like that. They'll change the law. The state can say we have all these vaccines that are mandatory, but not coronavirus. It would be weird because why wouldn't it do that? That will be up to the state legislature whether they will mandate the vaccines.