Here’s a question we’re sure to see in the courts before long: What if your employer mandates a Covid-19 vaccination and you’d rather not take it?
President-elect Joe Biden might insist that he has no plans to compel the shots, but one imagines that lots of employers will come to the opposite conclusion, not only for the safety of their workforce and their customers but also because … well, their employees might demand it. For instance, nearly two-thirds of tech workers surveyed say they won’t go back to the office unless their companies require all employees to be vaccinated against Covid-19.
So what happens to the dissenters? Do we just tell them it’s a public health emergency and they should all shut up?
As so often, with law and human beings alike, the answer is … well, complicated.
First, a word on terminology. We’re referring here to a “mandatory” vaccine, not a “compulsory” one — the latter term being reserved among ethicists for a vaccination required of everyone by law. A mandatory vaccination is one that is necessary only to engage in a particular activity.
Like, say, going to school. Or to work.
And an employer-mandated vaccine will run smack into a wall of public uneasiness and even dread.
A recent survey by the Associated Press and the Center for Public Affairs Research found that only 47% of U.S. respondents were certain that they would take the vaccine, with another 27% unsure. One key divide was gender: Some 55% of men but only 40% of women said yes; and 33% of women versus 18% of men said no. Another divide was age. Almost two-thirds of those over 60 were sure they would take the shots. For those under 45, the figure was only 36%.
That’s a lot of people to force.
Hesitation around vaccination isn’t new, and needn’t derive from fear … or from wild internet rumor. Sometimes, the reason is religion. For example, both the Dutch Reformed Church and the Church of Christ, Scientist, discourage vaccination. In general, the law has accommodated them. Even when vaccination is mandatory, as for attendance at public school, all but a handful of states carve out exceptions for families whose religious beliefs or conscience would be violated — exceptions many ethicists support. But the trend may be running the other way. In 2015, California joined West Virginia and Mississippi as the only states limiting parental opt-out to medical excuses. (In the European Union, there are essentially no non-medical exceptions.)
Employers who choose to mandate Covid-19 vaccinations would have discretion whether to allow similar exemptions. Although antidiscrimination requires that employers must try to accommodate an employee’s religious objection, efforts to persuade the courts to impose blanket exemptions have failed. Still, as far as I can tell, the issue has been tested mainly in the field of medical employment, where the justification for vaccination is unusually strong. How courts would rule on faith-based objections in other businesses is yet to be seen.
The AP-Norc poll also found trust in the new Covid-19 vaccines significantly fractured along racial lines. Although some 53% of White respondents said they would definitely take the shots, the figures for Hispanic and Black respondents were 34% and 24% respectively. Put otherwise, White respondents were more than twice as likely as Black respondents to be willing to be vaccinated — a divide that suggests trouble on the horizon for employers who mandate the shots as a condition of returning to work.
Even when the question is worded to include a scientific conclusion that the vaccine is safe, the racial divide remains. In a September survey by the Kaiser Family Foundation and the website The Undefeated, nearly half of Black respondents said they wouldn’t take a vaccine even if it was free and scientists said it was safe. Only a third of White respondents were so skeptical. Among Black skeptics, some 35% mistrusted the health care system generally; and nearly two-thirds were not confident that the “needs” of Black people were being taken into account in the vaccine’s development.
There are well-known historical reasons for this racialized mistrust, encompassing more than just the infamous Tuskegee experiments. There’s a well-documented history, for example, of the testing of risky medical procedures on the South’s enslaved population. And not all the problems are ancient history. In the mid-1990s, for instance, controversy arose over a test design that required withholding anti-AIDS medications from pregnant, HIV-positive women in Africa.(1)
In recent decades, such mistrust has led to difficulties in recruiting Black subjects for medical research. Even though the Black community has been hit hard by the pandemic, Covid-19 vaccine trials had trouble finding Black participants. Being told by employers to take the vaccine or quit won’t wash away centuries of well-deserved suspicion.
None of this is to say that employers shouldn’t be allowed to mandate vaccinations, or that employees or customers who demand them are acting for invidious reasons. But race, religion, and gender — all areas where we see the divide — are issues to be treated sensitively rather than dismissed. Even in the present emergency, we’d do better to choose persuasion over punishment. We can educate people, beseech them – even, in a pinch, pay them. With tens of millions of vaccine hesitators out there, we should be able to come up with a better idea than firing them.
(1) In fairness to the researchers, who were funded by the Centers for Disease Control, the design required a placebo arm. Nevertheless, critics wondered whether a similar study would have been permitted in the U.S.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
