In January, United Airlines CEO Scott Kirby outlined his company’s plans to require employees to get a vaccine, and in February, he reaffirmed those statements. Indeed, as vaccine distribution ramps up across the United States, talk has turned to whether employees can require employees to receive the COVID-19 vaccine as a condition of their employment and the potential legal ramifications of doing so.
The University of Pennsylvania Carey Law School’s Office of Communications spoke to Heimbold Chair in International Law and Professor of Law Eric A. Feldman about the issue of mandatory vaccines. Feldman is also Professor of Medical Ethics & Health Policy and Deputy Dean for International Programs.
Office of Communications: Do you see mandatory vaccines as a real possibility in private businesses? In what types of industries would it most likely occur and in which industries could employers face possible hurdles, if any?
Prof. Feldman: Yes, I think quite a few private companies are likely to require a COVID-19 vaccination, particularly those that involve some degree of contact between employees and the public. Airlines are one obvious example of companies that will want to insist that employees be vaccinated. Health care institutions, long term care facilities, schools, prisons, perhaps restaurants, stadiums, bars, and other custodial settings may also mandate vaccines. There, of course, will be exemptions, though I suspect they will be fairly narrow, i.e., employees will be able to refuse vaccines for medical reasons, but perhaps not for other reasons like so-called philosophical or religious reasons.
It is important to note that the COVID-19 vaccines have been approved under Emergency Use Authorization (EUA), which requires less data about safety and efficacy than full approval under a Biologics License Application (BLA). Vaccine mandates are far more likely once the COVID-19 vaccines receive BLA approval.
Office of Communications: Are mandatory vaccines for government employment likely?
Prof. Feldman: The 1905 case of Jacobson v. Massachusetts gives states the legal authority to mandate vaccines. I believe that under Jacobson a state could mandate that state residents, including government employees, be vaccinated for COVID-19, but such a mandate is unlikely. Most vaccine mandates target children, not adults, and a broad mandate is likely to invite considerable pushback from the population.
A more targeted mandate aimed at certain sectors of government employees is far more likely than a general mandate, given the likely political and social opposition to a broad mandate. I could also imagine a requirement that certain types of federal employees be vaccinated. Members of the active military, for example, may be required to vaccinate.
Office of Communications: Could employers potentially face liability for not mandating vaccines? For example, if a business with frequent public contact doesn’t mandate employee vaccination and a client/customer contracts COVID-19 and believes they can trace it back to that location, could the business face liability?
Prof. Feldman: It’s a good question, and I’m really not sure.
So, for example, if Starr restaurants does not mandate vaccines and one of their employees, a waiter, allegedly transmits COVID-19 to a restaurant patron, could the patron successfully sue the restaurant? I think it’s quite unlikely. You’ve already identified one of the big hurdles, which is causation – showing that the waiter was the vector of infection. That’s going to be really tough.
In addition, at least as a tort law matter, we’d have to show that the restaurant had a duty to mandate vaccination, and the duty would be not be to the employee but to the third-party client. That, too, strikes me as a pretty tough argument given the lack of any government policy requiring employers to mandate vaccines.
Maybe the restaurant patron could sue the waiter for not wearing a mask or not keeping an appropriate distance from the client, but I think that would also be a quite difficult claim to sustain.
In short, it’s, of course, possible that we will see claims against employers for failing to mandate the COVID-19 vaccine, but I doubt will see many such cases because of the time and trouble they involve for lawyers and the unlikelihood of success.