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A Project of The Annenberg Public Policy Center

Could a COVID-19 vaccine become mandatory?

This article is available in both English and Español

Some employers have required their employees to be vaccinated, or undergo regular testing, for COVID-19. The U.S. Equal Employment Opportunity Commission has said that employers aren’t prevented from having a mandatory vaccination policy for COVID-19 for employees who are physically in the workplace, as long as employers comply with federal laws stipulating that reasonable accommodations should be made for workers who cannot be immunized because of a disability or religious reason.

President Joe Biden also signed executive orders in September 2021 to require all federal workers and contractors who do business with the federal government to be vaccinated.

But the Supreme Court blocked a broader effort by the Biden administration to require all businesses with 100 or more employees to mandate that workers either be fully vaccinated or tested at least once a week.

In January 2022, the high court put the administration’s rule on hold while an appeals court considers its legality. In the ruling, the Supreme Court rejected the administration’s attempt to use the Occupational Safety and Health Act to issue an emergency rule requiring vaccination or testing. “Although Congress has indisputably given OSHA the power to regulate occupational dangers,” the court’s opinion reads, “it has not given that agency the power to regulate public health more broadly.”

However, the Supreme Court allowed an administration requirement that health care workers at facilities that receive Medicare and Medicaid funding be fully vaccinated, with exemptions for medical and religious reasons.

In that opinion, issued the same day as the OSHA ruling, the court agreed that the secretary of the Department of Health and Human Services had the authority to issue the requirement. In its ruling, the court said that “healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare” and that vaccination requirements for other diseases were common for health care workers nationwide.

States also can require individuals to be vaccinated.

As legal and public health expert Joanne Rosen of Johns Hopkins University has explained, the legal precedent for states to make vaccinations compulsory goes back to a 1905 Supreme Court case involving the smallpox vaccine. The court sided with the state, finding that the vaccination requirement was a reasonable regulation to protect public health.

The federal government cannot direct states to issue a vaccine mandate, but could provide financial incentives for states to do so.

“[T]he Supreme Court has interpreted the Tenth Amendment to prevent the federal government from commandeering or requiring state officers to carry out federal directives,” the Congressional Research Service explained in a 2019 report. “In the context of vaccination, this principle prevents Congress from requiring states or localities to pass mandatory vaccination laws, but it does not impede Congress from using its Spending Clause authority to provide incentives (in the form of federal grants) to states to enact laws concerning vaccination.”