More than half of New Yorkers are now fully vaccinated against COVID-19, but the Empire State – and the country as a whole – still has a long way to go when it comes to ending large-scale community spread. Vaccine hesitancy remains a key barrier to reaching the herd immunity that scientists say would require about 80% of the population get vaccinated. While state efforts to improve access and promote voluntary acceptance of COVID-19 vaccines remain ongoing, the state might eventually lean on legal mandates to boost immunity as it has for other diseases like measles and polio for decades.
A legal mandate could accomplish a lot even if it were not applied to the population at large. Vaccination rates among nursing home staff across the state still remain 20 percentage points below the herd immunity threshold, The New York Post reported May 9. And at some New York City nursing homes, most residents have not received a single shot. Gov. Andrew Cuomo recently announced that the governing boards at the City University of New York and State University of New York would require students to get vaccinated if they want to attend in-person classes this fall. What is stopping the state from requiring the same of other classes of people, whether they are nursing home staff, health care workers or the general public?
The current legal landscape surrounding the three available COVID-19 vaccines is a little tricky because they are currently administered under an Emergency Use Authorization from the U.S. Food and Drug Administration. That makes it tough to legally require that some people get their shots compared to others. Here is how it all works in practice.
Are vaccine mandates constitutional?
Yes. The U.S. Supreme Court ruled more than a century ago in Jacobson v. Massachusetts that state governments can impose vaccine mandates as long as they are reasonable and fairly enforced. A New York state court recently upheld the constitutionality of a 2019 law that eliminated religious exemptions for vaccines. The current U.S. Supreme Court could always rule otherwise, but the slow pace of the legal system means that would likely happen long after any future state vaccination requirements took effect in the near or medium terms.
So why is a vaccine mandate happening for public college students but not nursing home staff?
Guidelines from the federal Equal Employment Opportunity Commission make it clear that private employers can make vaccinations a condition of employment as long as the underlying rationale is “job-related and consistent with business necessity.” However, the FDA also requires that vaccine administrators give recipients a fact sheet that informs them of their right to refuse a vaccine. That creates a paradox of sorts for any public agency (like the New York City Police Department) or private business (like many nursing homes) that want to require vaccinations while also administering them under the Emergency Use Authorization. Colleges do not face the same problem when it comes to issuing mandates on students because their mandate is contingent on the FDA granting full approval to the vaccines by the fall.
The state could theoretically do the same for everyone else – just not until the vaccines are officially authorized. At least one public sector union leader has also noted how organized labor might also have to sign off on what type of disciplinary actions could be taken against vaccine scofflaws protected by collective bargaining agreements.
Are any vaccine mandates in the works at the state level?
The governor has already given his blessing to the new student vaccine mandate for SUNY and CUNY campuses, but there are just a few weeks left for state legislators to take matters into their own hands. State Sen. Brad Hoylman of Manhattan has recently unveiled a bill to legally require all in-person college students in New York to get vaccinated. “I’m working to get this legislation passed this session so it can go into effect once the U.S. FDA gives standard approval for COVID-19 vaccines,” Hoylman said in a statement. A representative for Assembly Health Committee Chair Richard Gottfried of Manhattan did not respond to a request for comment about the status of a proposed bill that would require staff at residential health care facilities get vaccinated. Assembly Member Linda Rosenthal of Manhattan has not reintroduced a proposal from the last legislative session that would have allowed the Department of Health to issue a broader vaccine mandate if the state appeared unlikely to reach herd immunity.
What sort of backlash might materialize against such ideas?
There are a few signs that opposition to COVID-19 vaccine mandates could be even more fierce than the pushback against the 2019 law ending the religious exemption, which came within one vote of dying in an Assembly committee. Opposition to COVID-19 vaccines range from pseudo-scientific concerns about its safety to more mainstream civil liberties. “It should be an individual's choice as to whether they want to receive the vaccine,” Republican Assembly Member Mike Reilly of Staten Island tweeted earlier this month. While GOP members of legislative minorities have little say about what gets passed, that has not stopped Republican Assembly Member David DiPietro of Western New York from submitting two bills (here and here) to preclude any statewide vaccine mandate. And anti-scientific forces both on- and offline have their ways of threatening politicians who get behind vaccine mandates. “Even though vaccine science is well settled, the rhetoric around the vaccine remains exceptionally hot, and even dangerous,” Rosenthal said in a statement. “As someone who is aggressively pro-vaccine, it has been exceptionally challenging to have reasonable conversations with vaccine skeptics because I have received death threats and was subject to misogynist and anti-Semitic hate.”
But wait… are vaccine mandates good policy?
Experts say sometimes yes, sometimes no. There were about 600 cases of the measles reported in the Empire State between October 2018 and July 2019, with 49 people getting hospitalized. While the full effects of the 2019 halt of the religious exemption for vaccines are still a matter of dispute, measles outbreaks have decreased to almost nothing over the past two years. However, public health experts say governments at all levels should exhaust their options before pursuing sweeping mandates. “When enforcement capacity is limited or nonexistent, mandates cannot be properly implemented and are thus unlikely to promote public health and safety,” Carmel Shachar, a bioethicist at Harvard Law School, and Dorit Rubinstein Reiss, a law professor at UC Hastings College of Law, wrote last year in the American Medical Association Journal of Ethics. “Moreover, mandates can backfire if a population resents being coerced and has not received sufficient education about the safety, efficacy, and public health importance of vaccinations.” The civil rights implications alone should make policymakers think twice before approving any future vaccine mandates, according to Allie Bohm, policy counsel at the New York Civil Liberties Union, unless they do everything they can to make sure that vaccine mandates do not exacerbate existing political, social, economic and racial divisions. “How do you know you're making sure that you're enforcing fairly and that you're enforcing evenly?” she said in an interview. “It’s another really important thing to think about.”
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