Balancing Your Employees Liberties with President Biden’s New Vaccine Mandate Policy

Vaccine Mandate Policy

Navigation of current vaccine mandates rules and regulations for private business is a complex legal web of federal and state laws. Vaccine mandate policy considerations are more complicated for companies with a remote workforce, whose employees reside in many different states, as they must comply with conflicting state laws regarding vaccine mandates. Private business owners are trying to balance their employee’s personal civil liberties with maintaining compliance with President Biden’s new Vaccine Mandate Policy. President Biden new rules mandate private sector business that have 100 or more employee to require COVID vaccination or mandatory weekly testing.

Where does the right to civil liberties come from? And do your employees have rights of personal civil liberties when it comes to vaccinating against Covid in a pandemic?

Civil liberty rights stem from the 14th Amendment. The two most important provisions of the 14th Amendment guarantee that states, like the federal government, cannot “deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. In practice, the Supreme Court has used the Due Process Clause of the 14th Amendment to guarantee some of the most fundamental rights and liberties we have today. It protects individuals from infringement by the states as well as the federal government. Now, we would not have to dive into the 14th Amendment if the Supreme Court (Court) would rule on a COVID vaccine mandate case. Good news is the Court in August 2020 had that very opportunity.

On August 2020 Klaassen v. Trustees of Indiana University the first case involving COVID-19 vaccine mandate came before the Court. We were hoping for clarification from the Court regarding the constitutionality of vaccine mandate specially regarding civil liberties under the 14th Amendment among other things. The University students challenge was directed to Amy Coney Barrett, the justice who receives emergency petitions from that region of the country. However, Justice Barrett denied the appeal and there were no noted dissents from other justices. The court did not issue a separate order or provide any explanation but simply indicated that Barrett denied the appeal.

Although Klaassen was the first case involving a COVID-19 vaccine mandate to appeal to the Supreme Court, it’s not the first case the Court has ruled on regarding vaccine compulsory laws. The Court precedent on vaccine mandates goes back to 1905 when United States was being ravaged by Smallpox. Jacobson v. Massachusetts, 197 U.S. 11 (1905) was a Supreme Court case in which the Court upheld the authority of states to enforce compulsory vaccination laws. Justice John Marshall Harlan delivered the section for 7-2 majority that the Massachusetts law which required all adults to be vaccinated for smallpox, did not violate the defendants’ civil liberties under the 14th Amendment. What does “Section for 7-2 majority” mean you ask? It means from the total of 9 Supreme Court justices, 7 voted in favor of upholding the vaccine mandate law of Massachusetts and 2 justices dissented.

Justice Harlan is often called “The Great Dissenter” due to his many dissents in cases that restricted civil liberties. He stood against segregation laws during a time when segregation was considered the natural law of the land. So, when Justice Harlan analyzes the limitation of civil liberties in a case of a compulsory vaccine regulations, one should stop and pay close attention.

Let’s take a closer look at Jacobson’s case. In 1902, faced with an outbreak of smallpox, the Board of Health of the city of Cambridge, Massachusetts adopted a regulation ordering vaccination of all of its adult inhabitants. A Cambridge pastor, Henning Jacobson, refused to get vaccinated, and he was prosecuted and fined $5. Jacobson argued that subjecting him to a fine or imprisonment for neglecting or refusing vaccination was invasion of his liberty under the 14th Amendment, and that one should not be subjected to the law if he or she objects to vaccination, no matter the reason. Ironically, pastor Jacobson was backed by a group called the Anti-Vaccination Society.

Justice Harlan wrote in his majority opinion “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” and that “[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.” Justice Harlan’s majority opinion so elegantly written, can be summarized as the general public’s safety supersedes individual rights during a health crisis such as smallpox outbreak.

Justice Harlan’s majority opinion is as important then as it is today in the mist of Delta variant surge of COVID-19, as his legal analysis balanced the individual rights of vaccine skeptics against the public’s right to protect itself from a virus during a public health crisis. It is quite amazing that 116 years ago our nation and courts were grappling with the same issues. Smallpox which caused the heath crisis in Jacobson is not identical to COVID. The origin of smallpox goes back thousands of years, its earliest evidence of disease comes from Egyptian Pharaohs. Smallpox had a 30% mortality rate which is significantly higher than COVID’s 3.4% globally mortality rate (although that might change). Smallpox is to this day considered one of history’s biggest killers. Smallpox was eradicated in Northern America in 1952, but it was not until 1980 that it was eradicated worldwide. So, from the Jacobson Case in 1905 where vaccines were mandated, it took 47 years with an aggressive vaccine campaign to eradicate smallpox in the United States, and 75 years to eradicate worldwide. Smallpox was an ancient disease, around for thousands of years and United States within a span of 60 years was able to eradicate it. According to the CDC the success of smallpox eradication is due to aggressive vaccine campaign in the United State and around the world.

The Jacobson case was heard in 1905, fast forward 68 years to 1973 where another case involving 14th Amendment privacy right over one’s body was heard by the Supreme Court. That case was Roe v. Wade, where the Court found that a woman’s right to an abortion fell within the zone of privacy protection under the 14th Amendment. This ruling will give some weight to the “My Body, My Choice” slogan of the anti-vaccine groups today. Roe expands one’s right over one’s body under privacy laws of the 14th amendment and allows US citizens to have a say on what procedures if any (such as a vaccine) can be administered to their bodies. Roe did not exam the right of individual citizens over their body in relations to the right of public safety in a health crisis. Interestingly those issues were only covered by Jacobson. However, Jacobson was decided in 1905, 68 years before Roe, so it’s unclear how the Court would rule today in relation to vaccine mandates with the new expansion of privacy protection over one’s body founded under Roe. The Court must decide if the expansion of civil liberties’ and right over one’s body recognized by Roe outweighs the public safety interest in a health crisis.  It should also be noted, Mississippi abortion law known as “Gestational Age Act” is being heard by the Court December 2021, and Mississippi is outright asking the Court to overturn Roe v. Wade. The outcome of the Court’s ruling in the Mississippi case might also influence the individual right of freedom over one’s body in relation to vaccinations. Assuming that Roe is overturned, the civil liberties over one’s body will be limited, and it might allow the Court to give more weight to the public’s interest over individual rights especially in a health crisis.

If Justice Barrett had agreed to hear the Klaassen case, it would have helped to navigate the current legal conundrums that is faced by many today. It would have been optimal to have clarity from the Court on the level of threshold a public health crisis level needs to reach, before public’s interest in safety supersedes the rights of privacy over one’s body. Justice Harlan believed a 30% mortality rate of the smallpox outbreak was enough for the public interest for safety to trump personal liberty over one’s body, but can COVID’s lower mortality rate at 3.4% also reach such a threshold? There is also the issue of expansion of privacy rights over one’s body under Roe that needs to be considered. These are decisions for the Justices of the Court, and not your humble author to dictate.

Vaccine Mandate Policy - waiting

At this point we are required to wait for a vaccine mandate case to be heard by the Court to get clarity on when the threshold of public health crisis will be considered great enough to override personal liberties granted under the 14th Amendment. We also must keep a close eye on the Court’s’ decision on December of 2021 regarding the Mississippi Gestational Age Act, as the Court’s’ ruling on that case might affect the privacy right over one’s body in relation to vaccination as well.

As President Biden’s new rules mandate, private sector business that have 100 or more employees to require vaccination or mandatory weekly testing, businesses will be scrambling to stay compliant with the federal government while not violating state laws. If you are a business with employees residing in many different states and are looking to implement a mask or vaccine mandate policy, do yourself a favor and hire an attorney. Let the attorney ride out the choppy waters of COVID laws.

Note: This article represents the views of the author only and not those of its employer.


Meet the Authors:
Roz Maiorino is a Legal Advisor for HRMS Solutions. Dr. Roz Maiorino is a dual trained medical doctor/attorney with 10 years of experience in business and healthcare law. Dr. Maiorino earned her Juris Doctor (J.D.) law degree from Catholic University of America, Columbia School of Law and her Doctor or Medicine (M.D.) degree from The George Washington University, School of Medicine. Dr. Maiorino has extensive knowledge in healthcare regulations including but limiting to HIPAA, fraud, and abuse. In addition to healthcare law, Dr. Maiorino has many years of practice in business law and corporation’s life cycle, including corporate formation, employment agreements, employment termination, sales or service contracts and partnership agreements. Dr. Maiorino started her legal carrier in patent law and transitioned to health care/corporate law in 2012. Licensed to practice law in Colorado and Maryland.

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