The History of Mandatory Vaccinations in the United States and the Ongoing Debate Concerning the COVID-19 Vaccination for Employers
The Spanish flu pandemic of 1918, the deadliest in history, infected an estimated 500 million people worldwide—about one-third of the planet’s population—and killed an estimated 20 million to 50 million victims, including some 675,000 Americans. At the time, there were no effective drugs or vaccines to treat this flu strain. “Citizens were ordered to wear masks, schools, theaters and businesses were shuttered and bodies piled up in makeshift morgues before the virus ended.”
Fast forward 103 years and the world is once again recovering from a global pandemic caused by the COVID-19 virus. As of June 3, 2021, there have been 172,395,932 cases of the coronavirus and 3,705,381 deaths worldwide. The crucial difference between the two pandemics is the widespread availability of a vaccine. At the present time, the United States Food and Drug Administration has authorized three COVID-19 vaccines for emergency use. The vaccines are: (1) Pfizer BioNTech COVID-19 Vaccine; (2) Moderna COVID-19 Vaccine; and (3) Janssen COVID-19 Vaccine (Johnson & Johnson).  While these vaccines have not yet been approved by the FDA, each one has received an emergency use authorization (EUA), which permits them to be distributed in the United States.
While the vaccine has become readily available to those in the United States who choose to receive it, there has been much speculation and debate as to whether the administration of the vaccine can be considered mandatory and, if so, whether it should be. Even before the 1918 pandemic, both the state and federal government have been called upon to interpret and implement requirements related to mandatory vaccination policies. The first state law mandating vaccination was enacted in Massachusetts in 1809 and, in 1855, Massachusetts became the first state to enact a school vaccination requirement to prevent the spread of smallpox in schools. The constitutional basis of vaccination requirements rests in the police power of the state.
In 1905, the Supreme Court issued its decision in Jacobson v. Massachusetts, upholding the right of states to compel vaccination. In Jacobsen, the Court held a health regulation requiring smallpox vaccination was a reasonable exercise of the state’s police power that did not violate the liberty rights of individuals under the Fourteenth Amendment to the U.S. Constitution. The police power is the authority reserved to the states by the Constitution and embraces “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”
In Jacobson, the Commonwealth of Massachusetts enacted a statute that authorized local boards of health to require vaccinations. Jacobson challenged his conviction for refusal to be vaccinated against smallpox as required by regulations of the local Board of Health. While acknowledging the potential for vaccines to cause adverse events and the inability to determine whether a person can be safely vaccinated, the Court specifically rejected the idea of an exemption based on personal choice. To do otherwise “would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease”  The Court also noted the tension between personal freedom and public health inherent in liberty: “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.”
Seventeen years later in 1922, the Supreme Court again addressed the constitutionality of vaccination requirements in Zucht v. King. In Zucht, the Court denied a due process Fourteenth Amendment challenge to the constitutionality of city ordinances that excluded children from school attendance for failure to present a certificate of vaccination holding that “these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.”
By the 1980-81 school year, all 50 states had laws covering students first entering school. As of the 1998-99 school year, all states but four (Louisiana, Michigan, South Carolina, and West Virginia) had requirements covering all grades from kindergarten through 12th grade.
Despite such laws, people continue to assert their personal rights in response to mandatory vaccinations. For example, in response to a more recent measles epidemic in Maricopa County, Arizona, the Arizona Court of Appeals rejected an argument that an individual’s right to education overrides the state’s need to protect against the spread of infectious diseases. In Maricopa County Health Department v. Harmon, the court upheld an injunction issued by the Maricopa County Health Department excluding a group of children from Franklin Elementary School during the 1985-86 school year until March 18, 1986 unless they provided proof of immunization against measles. Under the facts of the case, the court upheld the County Health Department’s efforts to take action to combat the disease by excluding unvaccinated children from the school when there is “a reasonably perceived, but unconfirmed, risk for the spread of measles.”Although the court considered the student’s right to an education under Arizona’s constitution, the court upheld the use of the state’s police power to ensure the public health of its citizens. The Maricopa County Court specifically noted that nothing in Jacobson required a state to prove the existence of epidemic conditions in order to compel certain vaccinations for the public health of its citizens.
While case law exists upholding the constitutionality of mandatory vaccinations, the question currently under debate is whether states and/or private employers should require its citizens and/or employees to get one of the three available COVID-19 vaccinations as a condition of employment. Many reasons have been relied upon to justify a mandatory vaccination policy by certain employers. Those reasons include exposure to a vulnerable client population, protecting other employees, and removing the need for quarantining during a possible exposure. The concept of mandatory vaccinations by employers in certain sectors of employment is certainly not new. Private employers, especially those in sectors whose employees are at greater risk of contracting vaccine-preventable illness or who work with populations that are especially vulnerable if they do get ill (i.e. hospital employees, health care workers, employees of long-term care facilities and/or nursing homes) can and have implemented mandatory vaccine policies if there is a “reasonable basis” for it. Such laws, which vary widely, generally contain opt-out provisions where a vaccine is medically contraindicated or if the vaccine is against the individual’s religious or philosophical beliefs.
Of course, any mandatory vaccination requirement imposed by employers must comply with federal and state employment laws, including but not necessarily limited to the Americans with Disabilities Act (ADA) (e.g. an employee with a disability may ask for an accommodation not to comply with the mandatory vaccination policy) and Title VII of the Civil Rights Act (e.g. if an employee is able to establish a sincerely-held religious belief that would prohibit an employee from taking the vaccine and can explain what belief such a policy violates, tan employer may be required to grant an accommodation unless doing so creates an undue hardship).
In an effort to assist employers with the decision whether to mandate employees to obtain one of the COVID-19 vaccines as a condition of employment and, if so, how, the EEOC recently provided long-awaited guidance explaining how federal employment laws apply to vaccination policies, vaccination incentive programs, and confidential employee documentation relating to such policies and programs. Specifically, on May 28, 2021, the EEOC published updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions arising under federal employment laws, and also posted a new resource for job applicants and employees, explaining how federal employment discrimination laws protect workers during a pandemic.
First, regarding antidiscrimination and reasonable accommodation issues, the EEOC clarified that federal employment laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act. For instance, if employers decide to implement a mandatory COVID-19 vaccination policy, they must comply with the “reasonable accommodation” provisions of the ADA, Title VII, and other employment considerations for those employees who are unable to receive the vaccine due to a disability or a sincerely-held religious belief.
Moreover, because some individuals or demographic groups may face greater challenges to receiving a COVID-19 vaccination, some employees may be more negatively impacted by a vaccination requirement than others. Due to these concerns, employers may be required to respond to allegations that a facially-neutral, non-discriminatory vaccination requirement constitutes a disparate impact on a protected group, such as minorities. The guidance also notes it would be unlawful for employers to apply a mandatory COVID-19 vaccination policy to employees in a manner that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason. Furthermore, pursuant to Title VII, an employer must ensure that pregnant employees are not discriminated against compared to other employees similarly situated. For instance, a pregnant employee may be entitled to some type of job modification, changes to work schedule or assignments, and/or long or short term leave to the extent any such modifications are offered to other employees.
On the issue of incentive programs, the EEOC clarified that federal employment laws do not prevent or limit employers from offering bonuses or other incentives to employees in order to encourage them to voluntarily get the vaccine from a third party not acting on the employer’s behalf. Moreover, the guidance clarified that those employers offering bonuses or incentives to their employees to get the vaccine and who provide their own on-site agents to administer the vaccine to their employees may do so as long as the bonus and/or incentive is not “coercive.” However, the guidance fails to define or provide examples of what could be considered coercive.
On the issue of employer rights to information versus the employee’s right to keep such information confidential, the EEOC clarified that an employer can request employees to provide confirmation of their COVID-19 vaccination status. However, if the employer chooses to do so, such information should be considered confidential pursuant to the ADA and kept separate from the employee’s personnel files. Additionally, the EEOC noted that employers may provide employees and their family members with information that educates them about COVID-19 vaccines and raises awareness about the benefits of the vaccine, and also highlights federal government resources available to those individuals seeking more information about how to get the COVID-19 vaccine.
It must be remembered that, as specifically noted by the EEOC, the guidance applies only to federal employment laws, and therefore employers must consider whether other applicable state or local laws place additional restrictions on any such policy. Also, the updated guidance does not address how any mandatory COVID-19 vaccination policy would apply to remote workers.
While the EEOC addressed vital legal considerations on whether and how employers can require their employees to be vaccinated, employers continue to struggle with addressing the question of whether they should implement a mandatory vaccination policy and, if so, whether they should offer some form of incentive to their employees to get the vaccine. If they do decide to make the vaccine mandatory, in addition to complying with all of the above requirements, employers must consider whether any such policy and its implementation will qualify the employee for workers’ compensation benefits should the employee experience adverse reactions that require medical care and/or time off from work.
If a Wisconsin employer decides to mandate the vaccine for its employees, and an employee develops a reaction that requires medical care and time off work, it will likely be considered a compensable injury and the employee would be entitled to worker’s compensation benefits. However, if the vaccine is entirely voluntary and uncompensated, it is more likely than not that it would not be considered a compensable injury. That is because, under Wisconsin worker’s compensation law, an employee does not qualify for benefits if an injury is the result of uncompensated and voluntary participation in workplace wellness programs. Specifically, pursuant to Wis. Stat. 102.03(1)(c)(3), an employee is not performing services growing out of and incidental to employment while engaging in a program, event or activity designed to improve the physical well-being of the employee, whether or not the program, event or activity is located on the employer premises, if participation in the program, event or activity is voluntary and the employee receives no compensation for participation. Therefore, if receipt of the COVID-19 vaccine remains entirely voluntary and uncompensated, any injury resulting therefore would likely be excluded from coverage under the Act.
If the employer does not mandate employees to get the vaccine, but offers it to its employees through an on-site clinic, any resulting injury will most likely be compensable because it is highly likely that the employee would be compensated for their participation in such an on-site clinic, as most employers would not require employees to discount their time if they participate in any such clinic. Again, to avoid liability, the employer should be clear that participation by any employee in an on-site vaccination program is voluntary and not required, and that the employee is not compensated in any way while receiving the vaccine.
While the advantages to employers for mandating vaccines for its employees may include getting employees safely back into the workplace quicker, provide peace of mind to both employers and employees alike that have been reluctant to return to work because of the fear of exposure (which may increase work morale and productivity), and reduce the chances of exposure to its customers, the disadvantages may actually outweigh the advantages. That is because such mandatory vaccination policies may lead to more employee complaints and allegations of discrimination for those not on board with any such policy and feel they are being forced to get a vaccine they would not otherwise choose to get. It may also result in higher cost of medical care if the employee suffers some type of allergic reaction and requires medical care and time off for which they seek workers’ compensation benefits, and may result in a decreased workforce if certain employees faced with a mandatory vaccination policy decide to voluntarily terminate their employment and seek alternate employment that does not require mandatory vaccinations.
Maria del Pizzo Sanders is a shareholder in the Labor and Employment Section at von Briesen & Roper, S.C. She focuses her practice on labor and employment, employment litigation, discrimination, non-compete agreements, employee handbooks, civil rights, severance agreements and unemployment benefits. She was selected by her peers for inclusion in The Best Lawyers in America© in the field Insurance Law (2018-2021). She is a member of the American Bar Association, the State Bar of Wisconsin, and the Association for Women Lawyers. She is a member and serves as a Wisconsin Firm Liaison for The Harmonie Group. Maria is a member of the Board of Directors of The Women’s Center in Waukesha, which serves women, children, and men impacted by domestic abuse, sexual violence, child abuse, and trafficking.
 Malone, Kevin and Alan Hinman, Vaccination Mandates: Chapter 13 – the Public Health Imperative and Individual Rights, 2nd edition. Oxford; New York: Oxford University Press, 2007.
 Jacobson v. Massachusetts, 197 U.S. 11 (1905).
 Id. at 25.
 Id. at 37.
 Id. at 26.
 Zucht v. King. 260 U.S. 174 (1922).
 Id. at 177.
 Vaccination Mandates, supra note 6.
 Maricopa County Health Dep’t v. Harmon, 156 Ariz. 161, 750 P.2d 1364 (1987).
 Id. at 166.
 Swendiman, Kathleen, Mandatory Vaccinations: Precedent and Current Laws (March 2011).
 EEOC, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (last updated May 28, 2021). For more on this issue, see Mary E. Nelson and Agatha K. Raynor, “The Status of Remote Work as a Reasonable Accommodation in Wisconsin After the COVID-19 Pandemic,” supra.
 “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” supra note 21.
 Judson Ballentine and Susan Larson, “Q&A – WORKERS’ COMPENSATION, LIABILITY FOR COVID-19 VACCINE REACTIONS – WISCONSIN” (2021).
 At the time of publication, 45.58% of Wisconsin residents are fully vaccinated; 10.5% of the U.S. population have been fully vaccinated, and approximately 19.9% of the U.S. population have received at least one shot. https://www.beckershospitalreview.com/public-health/states-ranked-by-percentage-of-population-vaccinated.