Can They Do That? Requiring vaccination in Virginia and West Virginia

The rollout of the Covid-19 vaccine in the United States has been met with both enthusiasm and skepticism.  Some feel relieved to both minimize their risks of becoming infected with Covid-19 as well as to decrease potential serious complications. Others fear that the vaccine does not have a historical base sufficient to guarantee its’ safety.  Whether we like it or not, many public and private entities are requiring a Covid-19 Vaccination.  Do laws requiring vaccination violate state or federal constitutional rights? Do they conflict with federal or state statutes? In other words:  Can they do that?

Can the GOVERNMENT require that a person get a vaccine?  Yes.  While no state or federal authority has indicated that they plan to require the vaccine, individual states probably have the authority to require vaccination.   During the smallpox epidemic, Massachusetts mandated vaccinations.  Henning Jacobson, concerned that he would develop a reaction to the shot, challenged the constitutionality of compulsory vacation as a violation of freedom of religion.  The U.S. Supreme Court upheld the $5.00 fine as a valid exercise of the state's police power.  The court recognized the potential for a medical exception. The West Virginia Code is explicit, but currently grants the authority to the state board of health to adopt “rules and regulations to obstruct and prevent the introduction or spread of smallpox or other communicable or infectious diseases into or within the State.”  The Virginia Code currently grants the State Health Commissioner the authority to require any safe immunization in the case of an epidemic.

Can SCHOOLS require that students be vaccinated against Covid-19 as a condition of attending? Yes, public schools can constitutionally require that students be vaccinated. A few years after the Supreme Court decided the case involving Henning Jacobson, Rosyln Zucht refused the smallpox vaccine and San Antonio public schools refused her admission. The U.S.  Supreme Court upheld Zucht’s exclusion.  Today, every state requires that students attending public and private schools receive certain vaccinations, providing for limited medical and religious exemptions.  In West Virginia, both the code and the regulatory rule require that children entering public, private, or parochial school or state-regulated childcare be immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough. The statute provides an exemption when a physician determines that the vaccination is contraindicated for a specific child and an immunization officer certifies that the exemption is appropriate.  There is no religious exemption in the West Virginia Code. In Virginia, students in public schools and universities are vaccinated against several infectious diseases, such as measles, mumps and chickenpox, as established by the state code or the State Board of Health.  Students may be exempt if the vaccine conflicts with the student's “religious tenets or practices" or can certify that a medical condition contraindicates immunization. The Virginia attorney general has recently affirmed the authority for Virginia's public universities to mandate the Covid vaccine stating the parents sending children to the state universities should feel confident that they will be safe.

Can EMPLOYERS require vaccines?  Yes, with some exceptions. Before Covid-19, many companies mandated vaccines, especially in health care.  The Wall Street Journal recently reported that one Houston hospital now mandates Covid-19 vaccines for all employees, stating that it promotes the safety of the patients.  Since employment in the United States is generally "at will," employers have great liberty in establishing working conditions.  The Equal Employment Opportunity Commission (EEOC) has confirmed that a Covid-19 vaccination requirement would not violate the Americans with Disabilities Act (ADA).    Enforcement and exemptions to the requirement are not as clear.  In some circumstances, employers may be required to provide reasonable accommodation for an employee who cannot be vaccinated due to a disability.

Can private BUSINESSES exclude an unvaccinated patron? Most likely, yes.  Businesses can restrict customers in any fashion they like, so long as it does not violate the law.  Think: "no shirt no shoes no service." The Civil Rights Act of 1964 provides one of the few restrictions.  It prohibits all public accommodations from discriminating based on race, sex, religion, national origin, or a protected class.  “Public accommodations” is broadly defined and includes hotels, restaurants, retail establishments and recreational facilities. So long as the vaccination does not impact a protected group, the law probably can’t restrict the business owner from imposing requirements.

Can airlines or cruise lines restrict TRAVEL to people who are not vaccinated?  Most likely, yes.   Since cruise lines and airplanes travel to international locations, the travel company can restrict access to those who could not depart the ship or plane, due to a lack of vaccine verification.  In domestic travel, while the Fourteenth Amendment to the U.S. Constitution may restrict the government from impeding travel, it does not restrict the ability of private businesses to impose conditions so long as they are not inconsistent with state or federal law.

 Can COUNTRIES require that we have a vaccine before entering that country?  Absolutely.  There are currently no restrictions on countries requiring vaccination and each has wide discretion to establish requirements before issuing visas for visitors.  Several countries in South America and in Africa have required vaccine for travel when coming from a country that has a high risk for yellow fever. There is no current international agreement that would restrict any country from requiring verification of the vaccine or requiring quarantine.

What can you do?

·      If you are vaccinated:  Keep your records so that you can verify your vaccination history.

·      If you are not vaccinated, talk with your physician to see if you qualify for a medical exemption.

·      If you are a member of a religious organization that opposes vaccination, speak with your clergy member to obtain further information about religious exemptions.

·      If you have any question about the legality of a vaccine requirement, speak with a lawyer.  Many issues relative to the requirement are still unresolved and may impact any of these mandates.