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My law firm has already fielded a couple questions from clients about whether they can be forced to get the COVID-19 vaccination. The client called me and asked why are all these vaccines being approved without adequate testing?  I told him “because we feel like “Russian”  …  get it? … “rushing.” It’s hard to find a good vaccine joke … just not a very funny subject.

Anyways, first question: “Can the Government force you to receive the vaccine” and, second question, “Can your employer force you?” Two very different legal issues.

Can the Government Require Vaccinations?

As to whether the government can force vaccinations, the only thing stopping it is the 14th Amendment.  The 14th amendment is the best part of the constitution really but underappreciated by the public – kinda like Phoebe on Friends.

The 14th Amendment says that the government cannot make any law which takes away any person’s life, liberty, or property without due process of the law. What a powerful statement because really all laws are enacted under threat of violence.  In other words, every law is carried out at the end of a gun.  Don’t believe me? Try not paying taxes or your speeding tickets for a couple years and see who comes for you?

In any case, The Supreme Court recognizes the14th-Amendment guaranty of substantive due process that protects US residents against arbitrary legislative actions; this constitutional guarantee requires that legislation not be unreasonable or arbitrary and that it have a substantial relation to the legislative objective.  In  law school this is the “reasonable relationship” or “minimal scrutiny” standard.

In the context of a forced vaccination program we have direct case authority on point to review.

In 1905, the Supreme Court addressed mandatory vaccinations for smallpox in Jacobson v Massachusetts.  What happened was Cambridge, Massachusetts enacted a mandatory smallpox vaccination program and Jacobson refused the vaccination and was fined $5. The Court ruled that the police power of a state absolutely included reasonable regulations established by legislature to protect public health and safety. The Court went on to determine in Jacobson that a state may require vaccination if the board of health deems it necessary for public health or safety.

The only exception to a mandatory vaccination is proof that the vaccination would seriously impair health or probably cause death.

In a more likely scenario for us, a Board of Education will pass a ruling that only children who have been vaccinated are allowed in school.  This exact situation was ruled on back in 1922 in Zucht v. King and found Constitutional based on evidence that it was reasonably related to the health of the children and so it passed the rational relationship test.  So that’s been decided as well.

Perhaps the only avenue of attack left on mandatory vaccinations is the 2nd Amendment which would bring some other factors into play but I am not aware of a case which delves into a 2nd Amendment argument yet.

Can a Private Employer Require Vaccinations?

So, now our second question and also very interesting is could your employer require vaccinations for your continued employment?  This is absolutely going to happen and here is the law.

Taking the government out of the questions also removes the 14th Amendment so we need to look to other laws if we are going to restrict a private company.

One possibility falls under the Americans With Disabilities Act (ADA). Under the ADA, “an employer must provide reasonable accommodations to workers who have medical conditions that make them unable to take the vaccine, if a reasonable accommodation is possible.”  In other words, if your doctor says you shouldn’t take the vaccine, your employer might be required to allow you to work from home or work in an isolated part of the office.

Another possibility is Title VII of the Civil Rights Act of 1964.

Title VII says, in the law itself, that  employees may be able to refuse vaccinations if they have a sincerely held religious belief that precludes vaccination, and not being vaccinated doesn’t impose an undue hardship on the employer.

So far the Courts have not given us to much guidance other than to say that any allegations under the ADA or Civil Rights act better have evidence to back them up or they will be thrown out.

I expect we will exit 2021 or 2022 with much better guidance on this issue as we will see cases work their way up to the appellate courts.

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