WASHINGTON — The first shots against the coronavirus made their way into the arms of eager front line health care workers nationwide this week, providing a glimmer of hope for a post-pandemic world. But once those volunteers are all vaccinated, some workers who are less excited about the vaccine could face mandates to receive it anyway, public health and legal experts say.
For now, doses of the newly authorized Pfizer vaccine are in short supply and have not yet been approved for use in children or pregnant women, meaning any potential mandates are likely still months or more away. But while President-elect Joe Biden has said he doesn’t support a vaccine mandate, in the future, private businesses, schools, and perhaps even states and localities could require the shots for those who don’t qualify for religious or medical exemptions.
Legal precedent — including a landmark Massachusetts case — suggests those mandates would be on solid ground in court.
“I absolutely envisage that, say, by the fall, when students are coming back to universities and when businesses are coming back and we want to get our economy on track, that there will be requirements for students and employees to be vaccinated,” said Lawrence Gostin, a professor at Georgetown Law specializing in public health law.
A bevy of lawsuits would likely accompany any decision by a private sector company to mandate the vaccine, which means some employers could instead decide to deploy incentives to encourage inoculations. But the Equal Employment Opportunity Commission, which enforces federal laws that make it illegal to discriminate in the workplace, said in 2009 that workplaces could mandate the swine flu vaccine as long as some exemptions were included, making it likely the commission would uphold mandates for this one, as well.
“Employers doing this are certainly taking a risk they will be challenged,” said Dorit Reiss, professor at the University of California Hastings College of the Law.
The power for the public sector to mandate vaccines is clearer. All 50 states require some childhood vaccines as a condition of public school entry, and those have been instrumental in getting immunization rates high enough to maintain herd immunity against diseases like the measles.
“Generally states have pretty broad power to step into the public health arena even if they’re stepping on individual rights,” Reiss said. “That’s the basis for a lot of measures we’ve already seen for COVID-19, such as masks and stay-at-home mandates.”
The landmark case establishing those vast powers originated more than a century ago in Cambridge, Mass., where a Swedish immigrant and Lutheran minister named Henning Jacobson refused to pay a $5 fine the city levied on him for refusing to be vaccinated against smallpox. He had argued the vaccine mandate violated his civil liberties.
The Supreme Court ruled against the minister in 1905, affirming the right for local governments to require vaccines by law. In that same decision, however, the court said the state could not compel someone to take the vaccine by force — a rebuke to the city officials in Boston and elsewhere who had been going door-to-door and forcibly vaccinating people without a telltale vaccination scar on their arms. That case, Jacobson v. Massachusetts, remains the law of the land.
“The easy case in American law was always public health — the powers to quarantine, the power to issue compulsory vaccination orders,” said Michael Willrich, a historian at Brandeis University who wrote a book about the smallpox vaccination campaign and its backlash. “These were challenged in the courts but almost universally upheld.”
But just because the power exists doesn’t mean city or state officials will be quick to use it. The incoming Biden administration is strongly signaling it does not support government mandates for the vaccine at the moment. “I will do everything in my power as president to encourage people to do the right thing and when they do it, demonstrate that it matters,” Biden said this month.
Representative Cedric Richmond, who will serve as a top adviser to Biden in the White House, reiterated that position on CBS’ “Face the Nation” on Sunday. “I don’t think we’re going to mandate anything,” he said. “What we’re going to do is appeal to the American people to rise up to their civic duty.”
A pandemic-free future is likely contingent upon enough Americans — 70 percent or more — receiving the vaccine to provide herd immunity to the rest of the population. Recent polls show about 60 percent of Americans would take the shot, a number that has increased substantially in the past few months. That prompts hope in some experts that mandates may not be necessary.
Howard Koh, the former assistant secretary for health for the Department of Health and Human Services, said he could envisage some employers mandating the vaccine, but he doesn’t imagine states or localities would take that step. “I don’t see that on the horizon for the near future or possibly ever,” he said.
Instead, he believes it will be crucial for the Food and Drug Administration to carefully track the long-term safety profile of the vaccines as they are doled out. That will help make the case to people to take the shots — without mandates.
“If we do all that, show it’s effective, safe not only short term but long term, then the major challenge will be to make it convenient, easy to access, and encourage people to sign up and receive a vaccine,” he said.
Mandating a vaccine can also provoke a backlash that might outweigh the public health benefits, some experts believe.
“Mandates shouldn’t be the front-line policy option,” said Saad Omer, a vaccinologist and infectious disease epidemiologist at Yale.
Omer added that in the future, several criteria must be met before mandating vaccines, including that the pandemic is still out of control and that any penalties for not taking the vaccine do not exacerbate inequalities, such as fining lower-income people who don’t want to take the shot.
Many of these questions are still far away, as the Pfizer vaccine is under an emergency use authorization right now, with Moderna’s vaccine potentially joining it in the coming days. Experts believe most institutions would not require a vaccine until the FDA has fully approved it, a process that could take six more months. At that point, it’s also possible the pandemic will be under control, lessening the need for mandates.
But employers are already busily discussing their options, which include a range of incentives such as extra time off, to encourage employees to get vaccinated rather than outright requiring it.
“Employers are sort of in a damned if you do, damned if you don’t situation when it comes to litigious individuals,” said Susanne Hafer, an employment lawyer at Sullivan & Worcester in Boston. “Are you opening yourself up to claims of negligence if you don’t require the vaccine and someone gets sick? If you do mandate it, could you be sued by people who claim injury as a result of the vaccine?”
Jack Manning, president of the Boston recruiting firm Manning Personnel Group, said some employers are considering only allowing workers who have been vaccinated back to the office. “Many firms are in a bit of a wait and see mode,” he wrote in an e-mail.
Most of the thorny questions of mandates assume widespread availability of the vaccine in the future, a question that is not yet settled.
“Right now the first problem is, ‘Are there going to be enough doses for those who want them,’ ” Reiss said.
Katie Johnston of the Globe staff contributed to this report.
Follow her on Twitter @lizcgoodwin.