Are Vaccine Mandates a Must?

On December 11, 2020, the FDA announced emergency use authorization of the first COVID-19 vaccine manufactured by Pfizer. [1] Ever since then, questions about the safety and accessibility of vaccines have increased, heightened by the introduction of the Moderna vaccine seven days after Pfizer and the more recent authorization of the Johnson & Johnson vaccine. [2] As each state moves through its unique distribution plan, businesses find themselves facing tough decisions regarding their own vaccination policies. Long before the introduction of these vaccines, many businesses began requiring the use of face coverings for both employees and customers. These practices, implemented to reduce the spread of the virus and create a safer environment, have been met with defiance by some citizens, leaving business owners frustrated and defeated. [3] Now, as the vaccine begins its general rollout, businesses face an important question: what vaccine policy should they adopt?  

Although most businesses will likely refrain from adopting or enforcing vaccination policies for their customers, travel-related businesses exist in a unique context in which mandating the vaccine is critical to public health. It is within such businesses’ legal right to require a vaccination, and their doing so would drastically lower the risk of COVID-19 transmission and spread. In 1905, the Supreme Court ruled in Jacobson v. Massachusetts that states were legally allowed to require a smallpox vaccine, as mandatory vaccination did not violate any constitutional rights. [4] The holding in this case demonstrates that requiring vaccination is not novel as one may think. Given the fact that businesses are allowed to implement any standard for service as long as it’s not expressly prohibited by law, [5] it is clear that a private business can require the COVID-19 vaccine to create a safe environment for all patrons and employees.

A business’s right to create its own rules is not unlimited; anti-discrimination laws such as the 1964 Civil Rights Act prevent businesses and private citizens from discriminating against people on the basis of personal characteristics such as sex, race and religion, but neither a mask nor a vaccine mandate is targeted toward such protected characteristics. [6] The most immediately relevant law is the American with Disabilities Act (ADA), which protects those with disabilities from being unfairly targeted. [7] In this context, refusing to comply with a mask or vaccine mandate on the basis of a claimed disability could be argued to violate the ADA, but the public health exception within the act addresses this, as their non-compliance poses a major risk to others’ health. [8] Additionally, a private business imposing a vaccine mandate in no way infringes on a person’s First Amendment right to express themselves, as some citizens have tried to claim with mask mandates. [9] Instead, it’s a legal way to avoid foreseeable health challenges and preserve public health that travel-related businesses should especially consider.    

Although all businesses have the right to impose vaccine mandates, travel-related companies have the greatest incentive to do so. As explained above, all businesses have the right to mandate vaccines to protect the health and safety of those inside the business’ facilities, but that doesn’t mean all businesses are equally suited to take advantage of that right. Businesses that do not involve the transportation of people, such as grocery, clothing and department stores have a relatively lower capacity to jeopardize public health given their domestic and local nature. Additionally, most patrons spend a limited amount of time in retail stores, which lowers the risk of COVID-19 transmission, as opposed to the hours or days one could spend on a plane or cruise ship. [10] Given the brevity of contact, coupled with the pure technical challenges of enforcement (as many businesses already face resistance to mask mandates), it does not seem appropriate or feasible for food or retail establishments to adopt vaccine policies.

Travel-related businesses, on the other hand, should seriously consider such mandates. The nature of these businesses lend themselves to increased risk for their customers and employees, as they are in enclosed spaces for long periods of time, which increases the likelihood of transmitting COVID-19. [11] Although it’s been shown that viruses have difficulty spreading on planes due to the air circulation, social distancing is impossible while on board, which makes aviation comparatively dangerous. [12] Additionally, people being transported from one place to another poses an increased threat to public health through broader transmission; this concern was acknowledged at the beginning of the pandemic, as travel bans were one of the first policies implemented. [13] Vaccine mandates are not as far off as we think; United Airlines has already expressed strong interest in mandating the vaccine and Crystal cruises has announced their vaccine requirement for passengers. [14] Thus, the benefits to personal and public health of requiring vaccination outweigh the potential structural difficulties of implementation.          

Finally, if these travel-related businesses fail to impose vaccine requirements, they are also subjecting themselves to increased liability. Failing to require the vaccine will increase the likelihood of infection and, by nature, the probability of negligence lawsuits being levied against the company, along with ample amounts of bad press. [15] Although many such companies include liability waivers when people purchase their tickets, legal loopholes still exist. For example, cruises that are incorporated in foreign countries, such as Princess Cruises, allow passengers to file lawsuits in those jurisdictions. [16] Although such cases are proving difficult to win, these legal issues are complex and travel-based companies may have an interest in avoiding them altogether by requiring the vaccine and lowering the risk of COVID-19 transmission. [17]

Despite vaccine mandates being infeasible at the moment given the vaccine distribution timeline, they may become prominent in the near future. All businesses should start contemplating their vaccine policies and travel-related companies, in particular, should exercise their legal right to impose vaccine mandates for the sake of personal and public health. 

[1] U.S. Food and Drug Administration. 2021. Moderna COVID-19 Vaccine. https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/moderna-covid-19-vaccine.

[2] U.S. Food and Drug Administration. 2021. Moderna COVID-19 Vaccine. https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/moderna-covid-19-vaccine; U.S. Food and Drug Administration. 2021. Janssen COVID-19 Vaccine. https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/janssen-covid-19-vaccine.

[3] Higgins-Dunn, N. and Joseph, L., 2020. Businesses, sick of policing mask use to prevent coronavirus, ask government to step in. CNBC. https://www.cnbc.com/2020/07/07/businesses-sick-of-policing-mask-use-ask-government-to-step-in.html.

[4]Jacobson v. Massachusetts, 197 U.S. 11 (1905)

[5] Pawlowski, A. 2020. "Will The COVID-19 Vaccine Be Mandatory?". TODAY.Com. https://www.today.com/health/will-covid-19-vaccine-be-mandatory-t190838.

[6] Justia. 2018. Title VII of the Civil Rights Act. [online] Available at: https://www.justia.com/employment/employment-discrimination/title-vii/#:~:text=Title%20VII%20of%20the%20Civil%20Rights%20Act%20of%201964%20is,condition%2C%20or%20privilege%20of%20employment.

[7] Justia. 2018. Americans with Disabilities Act (ADA). [online] https://www.justia.com/employment/employment-discrimination/disability-discrimination/americans-with-disabilities-act/.

[8] Colby, A., 2020. Safety Trumps When Dealing With Customers Who Refuse To Wear Masks. [online] Forbes. https://www.forbes.com/sites/aaroncolby/2020/08/17/safety-trumps-when-dealing-with-customers-who-refuse-to-wear-masks/?sh=605ef0931fd0.

[9] Karon, Daniel, and Giliann Karon. "To Mask Or Not To Mask? It's Not a Constitutional Question." Columbia Law School's Blog: The CLS Blue Sky Blog. October 29, 2020. https://clsbluesky.law.columbia.edu/2020/10/29/to-mask-or-not-to-mask-its-not-a-constitutional-question/#:~:text=The%20First%20Amendment%20protects%20freedom,particular%20style%20mask%20were%20required.

[10] Centers for Disease Control and Prevention. 2020. COVID-19 and Your Health. https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/deciding-to-go-out.html.

[11] Ibid.

[12] CDC. "Travel During COVID-19." Centers for Disease Control and Prevention. February 19, 2021. https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-covid19.html#:~:text=Most%20viruses%20and%20other%20germs,getting%20COVID%2D19.

[13] Chinazzi, Matteo, Jessica T Davis, Marco Ajelli, Corrado Gioannini, Maria Litvinova, Stefano Merler, Ana Pastore y Piontti et al.. "The Effect of Travel Restrictions on the Spread of the 2019 Novel Coronavirus (COVID-19) Outbreak." Science (American Association for the Advancement of Science) 368, no. 6489 (2020): 395-400.

[14] CNBC News. 2020. United Airlines CEO wants to make Covid vaccines mandatory for employees — and encourages other companies to do the same. https://www.cnbc.com/2021/01/22/united-airlines-ceo-wants-to-make-covid-vaccines-mandatory-for-its-employees.html; Saunders, A., 2021. Crystal latest cruise company to announce COVID-19 vaccine requirement for passengers. [online] Usatoday.com. https://www.usatoday.com/story/travel/cruises/2021/02/19/covid-vaccine-required-crystal-cruises-passengers/4505465001/.

[15] Sachs, Andrea. 2020. "A Spate Of Lawsuits Could Help Travelers Battling Airlines And Cruise Lines. Here’S What You Need To Know.". The Washington Post. https://www.washingtonpost.com/lifestyle/travel/a-spate-of-lawsuits-could-help-travelers-battling-airlines-and-cruise-lines-heres-what-you-need-to-know/2020/04/24/a80f7ebc-8415-11ea-a3eb-e9fc93160703_story.html.

[16]Thorbecke, Catherine. "You Have 'little Recourse' If You Get Coronavirus on a Cruise, Maritime Law Expert Warns." ABC News. March 16, 2020. https://abcnews.go.com/Business/recourse-coronavirus-cruise-maritime-law-expert-warns/story?id=69501800

[17] Kelly, Cara. “Centuries-old laws may shield the cruise industry from huge payouts in coronavirus suits.” USA Today. April 2, 2020. https://www.usatoday.com/story/news/investigations/2020/04/02/coronavirus-lawsuits-face-uphill-battle-against-cruise-industry/5111173002/