(CBS DFW) — The end of the COVID pandemic seemed to be in sight a couple months ago. Case numbers were falling. People were returning to offices. The economy was picking up. It’s since become clear that the pandemic was entering a new phase. The number of COVID cases is increasing quickly across the country, thanks to the rise of the Delta variant. Most of the cases and virtually all of the resulting hospitalizations are among the unvaccinated. Mass vaccination remains the only realistic path out of the pandemic. But the national vaccination rate has slowed from over 3 million shots per day in the spring to just over half a million shots per day this summer. The doses are readily available in most communities. The uninoculated are just unwilling to get them. Vaccination mandates are now being implemented. Short of a national vaccine mandate, how effective can they be?
Is A National Vaccine Mandate Legal?
The federal government has long had the power to implement a national vaccine mandate. A 1905 Supreme Court case upheld mandatory vaccination to end a smallpox epidemic. The ruling read, in part, “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.”
In fact, the history of our authorities implementing public health measures for the benefit of society dates back to colonial days. Quarantine laws, to prevent the spread of smallpox, existed back to the 17th century. States along the coast routinely required a ship’s sailors and passengers to quarantine onboard before coming ashore. New York City often required immigrants to be isolated when they arrived. To this day, tuberculosis patients can be forced to isolate until they finish their medications.
Just because the federal government can mandate vaccinations nationwide doesn’t mean it will. In answering a question about whether the federal government should issue mandates, White House press secretary Jen Psaki recently said, “that’s not the role of the federal government. That is the role that institutions, private sector entities and others may take.”
This has consistently been the Biden administration’s position for quite awhile. Rochelle Walensky, director of the Centers for Disease Control and Prevention, recently confirmed that position again.
.@BerkeleyJr To clarify: There will be no nationwide mandate. I was referring to mandates by private institutions and portions of the federal government. There will be no federal mandate.
— Rochelle Walensky, MD, MPH (@CDCDirector) July 30, 2021
While the president strongly supports vaccines for anyone who is eligible and healthy enough, he doesn’t think its the federal government’s place to mandate them for citizens. The divided politics of the nation are likely a big reason why. A vaccination mandate may push some of those who are on the fence into receiving shots, but probably not enough to make a meaningful difference. At the same time, it will harden the anti-vaccine position of all those who are against it.
The federal government has taken a much stronger position in its capacity as the country’s biggest employer. Last week the Department of Veteran Affairs required all of its health care staff to be vaccinated within eight weeks. It was the first agency-wide mandate from the Feds. Since then, the President has stated that all federal employees and on-site contractors will need to prove their vaccination status or where a mask, socially distance, and submit to regular testing. The civilian workforce, separate from the military, numbers over 2 million. A decision on mandatory vaccination for the additional 1.3 million active-duty troops is pending.
Can Cities And States Mandate Vaccines?
Cities and states can mandate vaccines for their employees. And many already have. New York Mayor Bill de Blasio issued a mandate early last week requiring all city employees to be vaccinated by July 13. Any of the city’s roughly 400,000 workers who don’t will be subject to weekly testing. Those who break the mandate can’t go to work and won’t be paid.
California has a similar rule in place for its government workers. Effective this month, the state’s 238,000-plus government workers, along with its 2 million-plus healthcare workers, must be vaccinated or wear masks in a work environment. Other city and state governments across the country are considering similar measures.
New York City intends to take mandates a step further. Mayor de Blasio announced Tuesday that customers and employees of indoor dining, fitness and entertainment establishments will soon have to show proof of vaccination. The rules will start to phase in on August 16, with full enforcement by September 13. While similar to mandates issued in France and Italy last month, this is the first in the United States. Other restrictions in other cities will likely follow.
Some states have moved in the opposite direction, banning agencies from requiring proof of vaccination. As of late July, nine states, including Arkansas, Arizona, and Ohio, had laws in place that somehow limit the mandating of vaccines. Some of these laws date back months, to when the country was in a different stage of the pandemic. The laws tend to apply to state and local governments, rather than private schools and private employers, and only prevent requiring a vaccine. State officials can still encourage vaccinations. Some laws are linked to the vaccines’ authorization for emergency use, meaning they won’t apply to Pfizer and Moderna, once the U.S. Food and Drug Administration (FDA) fully approves them.
Can My Employer Require A Vaccine?
To date, most employers do not require employees to be vaccinated. But it’s well within an employer’s rights, and plenty of high-profile companies have instituted vaccine mandates on their own. Disney, Google, Morgan Stanley, and Netflix are all on the list, not to mention many hospitals and healthcare systems. Banner Health, Arizona’s largest healthcare system, mandated vaccinations for its employees, despite that state’s position on mandates. Tyson Foods and Microsoft joined the list this week.
Many of the companies announcing mandates are comprised mostly of office workers, who are largely reluctant to work alongside unvaccinated coworkers. Companies that employ large numbers of manufacturing, warehouse and food service and production workers are less willing to require vaccines. They fear pushing away workers in what’s become a difficult market for hiring them.
For that reason, the recent announcement from Tyson is particularly notable. All of the company’s employees must be vaccinated by November 1, with executives and office workers facing shorter deadlines. The nation’s largest meat producer employs 139,000 people, fewer than half of whom are vaccinated. The company has endured multiple COVID-related shutdowns at its various processing plants throughout the pandemic. Workers have died of the virus, and families have sued the company for failing to take the necessary preventative measures.
Amazon and Walmart, which employ 1.3 and 1.5 million people respectively, have encouraged vaccines but not yet required them for their hourly workers. A mandate from one of the country’s two biggest private employers would likely encourage other companies to implement similar policies. Walmart may be leaning that direction. Employee’s at the company’s Bentonville, Arkansas headquarters have until October 4 to get vaccinated.
Governments have offered everything from lotteries to scholarships to encourage vaccination. Companies have given their employees bonuses, gift cards, and paid time off. But vaccination rates have slowed from over 3 million per day to around half a million, and COVID cases are steadily rising. With giveaways reaching the limit of their effectiveness, governments and businesses are resorting to takeaways. Will limiting access for the unvaccinated to employment and entertainment encourage them to get the shot? We’re about to find out.
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