This article, which is an update about COVID-19 vaccine mandates, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
It has been an intense week for the discussion of COVID vaccine mandates, and a lot has happened. This post is simply a very short overview of developments. So here is what is going on this week.
Office of Legal Counsel memo
This week, we found out that on July 6, 2021, the Office of Legal Counsel (OLC) – a unit in the Department of Justice whose job is to give legal advice to the President and federal agencies – issued a memo concluding that yes, “entities” – their term – can issue mandates for a COVID-19-19 vaccine that was approved under an Emergency Use Authorization (EUA).
To remind readers, the legal question here is that the Emergency Use Authorization Act includes a provision that tells the Secretary of Health and Human Services certain things, including “the option to accept or refuse administration of the product.” Id. § 564(e)(1)(A)(ii)(III). Some – including some very respectable scholars, and officials in CDC and FDA – read this provision to mean that mandates are prohibited.
Others – including me – thought that is not a good reading of it, since the provision speaks only to the Secretary, and should not be read to prohibit other actors – that are traditionally allowed to mandate vaccines – from doing so.
On June 13, 2021, in the only judicial decision on this so far, a federal district court judge upheld a workplace mandate by the Methodist Hospital in Houston, Texas, on the ground that the act only applies to the Secretary, not to private employers.
The OLC went even further. It not only agreed that the provision does not apply to “entities” (private and public), it concluded that it only requires certain information to be given to recipients, and does not include any other action provisions. Therefore, private or public entities – including the military, with one condition (next sentence) – can mandate EUA vaccines.
The military has a special provision, and the OLC interpreted it to mean that if the Department of Defense wants to mandate the vaccine for the military it needs a Presidential waiver.
The memo is very thorough – 18 pages – and I will say a little more on it because, well, it is a crazy week. You can read it here.
Note that the memo does not carry legal authority outside the federal government – it is not binding in court, and will get limited deference, since it’s an opinion memo – but it may carry strong persuasive weight because it’s very well written and carefully reasoned.
For what it’s worth, Dr. Caplan and I proposed that rewriting the EUA document can help provide a strong legal basis for EUA mandates.
I would expect this memo to help give confidence to those seeking to mandate the vaccines before the EUA.
COVID-19 vaccine andates
On Monday, July 26, 2021, the Department of Veteran Affairs mandated COVID-19 vaccines for all its medical staff – doctors, dentists, anyone, including physician assistants and chiropractors – who work in Veteran Affairs facilities. This covers a large number of individuals.
On the same day, Governor Gavin Newsom of California announced that “all state and health care workers” need to show proof of vaccination or be tested regularly – which he explained means weekly testing, potentially going to bi-weekly for highly affected areas.
Still on that day, Mayor Bill de Blasio of New York City announced a similar requirement for the City’s 300,000 workers.
Then, on Wednesday, New York Governor Andrew Cuomo also issued a statement about a similar requirement for state employees in New York. Further, Governor Cuomo announced the mandate applied to state-run hospitals more strictly, without the option to be tested as an alternative.
Then, on Thursday, July 28, 2021, President Biden announced a vaccine or be tested mandate for federal employees – and called for incentives and more.
So it has been a very intensive week. Note that aside from the VA mandate and the New York state hospital workers mandates, all of these are what I would call “soft mandates”. They are not “vaccinate or you’re fired”, they’re “vaccinate or you will be inconvenienced by testing”.
These kinds of mandates are harder to challenge in court because they do have an open exemption with a reasonable alternative but certainly create an incentive to vaccinate.
So, it’s been a week for COVID-19 vaccine mandates.