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Will There Be A National Vaccine Mandate?

(CBS Detroit) -- The COVID pandemic seemed to be nearing its end a few months ago. Case numbers were falling, and vaccination numbers were rising. Mask mandates were easing, and people were returning to work. The economy was picking up. It's since become clear that the pandemic was entering a new phase. The number of COVID cases is once again increasing across the country, thanks to the rise of the Delta variant. Most of the new cases and virtually all of the resulting hospitalizations are among the unvaccinated. Mass vaccination, helped along by vigilant masking, remains the only realistic path out of the pandemic. But the national vaccination rate has slowed from over 3 million shots per day in the spring to just over half a million shots per day this summer. The doses are readily available in most communities. The uninoculated are just unwilling to get them. Vaccination mandates are now being implemented across various levels of government and the private sector. Short of a national vaccine mandate, how effective can they be?

Can Cities And States Mandate Vaccines?

A 1905 Supreme Court case upheld mandatory vaccination to end a smallpox epidemic in Massachusetts. The Jacobson v. Massachusetts ruling read, in part, "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."

A second decision in 1922 called Zucht v. King confirmed the matter. In that case, the city of San Antonio, Texas was sued for excluding students who weren't vaccinated for smallpox. The Supreme Court's decision read, in part, "long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination."

In fact, the history of our authorities implementing public health measures for the benefit of society dates back to colonial days. Quarantine laws, to prevent the spread of smallpox, existed back to the 17th century. States along the coast routinely required a ship's sailors and passengers to quarantine onboard before coming ashore. New York City often required immigrants to be isolated when they arrived. To this day, tuberculosis patients can be forced to isolate until they finish their medications.

Cities and states can mandate vaccines for their employees. And many already have. New York Mayor Bill de Blasio recently issued a mandate requiring all city employees to be vaccinated by September 13. Any of the city's roughly 400,000 workers who don't will be subject to weekly testing. Those who break the mandate can't go to work and won't be paid.

California has a similar rule in place for its government workers. Effective this month, the state's 238,000-plus government workers, along with its 2 million-plus healthcare workers, must be vaccinated or wear masks in a work environment. Other city and state governments across the country are considering similar measures.

New York City intends to take mandates a step further. Mayor de Blasio announced last Tuesday that customers and employees of indoor dining, fitness and entertainment establishments will soon have to show proof of vaccination. The rules will start to phase in on August 16, with full enforcement by September 13. (Broadway League, the theatre industry's national trade association, previously announced that Broadway theatres will require attendees to be fully vaccinated.) While similar to mandates issued in France and Italy last month, New York City's is the first in the United States. Other restrictions in other cities will likely follow.

Some states have moved in the opposite direction, banning agencies from requiring proof of vaccination. As of late July, nine states, including Arkansas, Arizona, and Ohio, had laws in place that somehow limit the mandating of vaccines. Some of these laws date back months, to when the country was in a different stage of the pandemic. The laws tend to apply to state and local governments, rather than private schools and private employers, and only prevent requiring a vaccine. State officials can still encourage vaccinations. Some laws are linked to the vaccines' authorization for emergency use, meaning they won't apply to Pfizer and Moderna, once the U.S. Food and Drug Administration (FDA) fully approves them.

Is A National Vaccine Mandate Legal?

While cities and states have long had the power to implement vaccine mandates, it's unclear if the federal government can. According to the Congressional Research Service, a sort of think tank providing Congress with legal and policy analysis, "except in certain limited circumstances, including in the immigration and military contexts, no existing federal law expressly imposes vaccination requirements on the general population."

The federal government does have authority in certain areas that would support executive action to fight COVID. Congress could also effectively create a mandate by stipulating that states must require vaccines in order to receive certain types of federal funding. Just because the federal government may have the power to mandate vaccinations nationwide doesn't mean it will. In answering a question about whether the federal government should issue mandates, White House press secretary Jen Psaki recently said, "that's not the role of the federal government. That is the role that institutions, private sector entities and others may take."

This has consistently been the Biden administration's position for quite awhile. Rochelle Walensky, director of the Centers for Disease Control and Prevention, recently confirmed that position again.

While the president strongly supports vaccines for anyone who is eligible and healthy enough, he doesn't think it's the federal government's place to mandate them for citizens. The divided politics of the nation are likely a big reason why. A vaccination mandate may push some of those who are on the fence into receiving shots, but probably not enough to make a meaningful difference. At the same time, it will harden the anti-vaccine position of all those who are against it.

Biden is weighing the idea of further pressuring various organizations to require vaccines by withholding federal funds. One approach could be to withhold Medicare funds from nursing homes and long-term care facilities until they mandate vaccinations for their staff. Similar to a national mandate, this sort of requirement would stir up further resentment among Republicans, particularly in areas with low vaccination rates. It's unclear if the benefit would outweigh the cost.

The federal government has taken a much stronger position in its capacity as the country's biggest employer. A couple weeks ago the Department of Veteran Affairs required all of its health care staff to be vaccinated within eight weeks. It was the first agency-wide mandate from the Feds. Since then, the President has stated that all federal employees and on-site contractors will need to prove their vaccination status or where a mask, socially distance, and submit to regular testing. The civilian workforce, separate from the military, numbers over 2 million. A decision on mandatory vaccination for the additional 1.3 million active-duty troops is pending.

Can My Employer Require A Vaccine?

To date, most employers do not require employees to be vaccinated. But it's well within an employer's rights, and plenty of high-profile companies have instituted vaccine mandates on their own. Disney, Google, Morgan Stanley, and Netflix are all on the list, not to mention many hospitals and healthcare systems. Banner Health, Arizona's largest healthcare system, mandated vaccinations for its employees, despite that state's position on mandates. Tyson Foods and Microsoft joined the list this week.

Many of the companies announcing mandates are comprised mostly of office workers, who are largely able to work from home and largely reluctant to work alongside unvaccinated coworkers. They are also companies that has generally thrived during the pandemic. Companies that employ large numbers of manufacturing, warehouse and food service and production workers are less willing to require vaccines. They fear pushing away workers in what's become a difficult market for hiring them.

For that reason, the recent announcement from Tyson is particularly notable. All of the company's employees must be vaccinated by November 1, with executives and office workers facing shorter deadlines. The nation's largest meat producer employs 139,000 people, fewer than half of whom are vaccinated. The company has endured multiple COVID-related shutdowns at its various processing plants throughout the pandemic. Workers have died of the virus, and families have sued the company for failing to take the necessary preventative measures.

United Airlines, another company hit hard by the pandemic and the resulting shutdown of the travel industry, just announced an employee mandate of its own. It's the first among airlines. All 67,000 domestic employees must be vaccinated five weeks after the FDA fully approves a vaccine or five weeks after September 20, whichever comes first. Those who fail to send an image of their vaccine card to the company will be terminated. (Certain health and religious exemptions will be allowed.) United has no plans to require vaccinations among passengers.

Amazon and Walmart, which employ 1.3 and 1.5 million people respectively, have encouraged vaccines but not yet required them for their hourly workers. A mandate from one of the country's two biggest private employers would likely encourage other companies to implement similar policies. Walmart may be leaning that direction. Employee's at the company's Bentonville, Arkansas headquarters have until October 4 to get vaccinated. Amazon, meanwhile, tightened its mask requirements to include all warehouse workers, regardless of vaccination status.

Governments have offered everything from lotteries to scholarships to encourage vaccination. Companies have given their employees bonuses, gift cards, and paid time off. But vaccination rates have slowed from over 3 million per day to a little over half a million, and COVID cases are steadily rising. With giveaways reaching the ceiling of their effectiveness, governments and businesses are resorting to takeaways. Will limiting access for the unvaccinated to employment and entertainment encourage them to get the shot? We're about to find out.

Where Does The COVID Pandemic Stand Now?

Vaccine mandates will take effect in the coming weeks, and more will follow. Those who receive their first shot today and their second shot three weeks later won't be fully protected until two weeks after that. Most of the unvaccinated won't rush out to get their first shot, if they get a shot at all. Meanwhile, people will continue to be infected, and COVID case numbers will continue to rise.

The seven-day average of new reported coronavirus cases has jumped to about 90,000 a day from under 12,000 a month and a half ago. While still lower than January's peak, that's almost 34 percent higher than the previous seven-day average and moving in the wrong direction.

The full vaccination rate is 50.1 percent for the country. But state percentages range from 67.9 percent in Vermont to 34.8 percent in Alabama. Many counties across the country have vaccination rates lower than that. And to state the obvious, the virus transmits within these smaller communities.

Americans have received over 351 million doses, with 58.7 percent of the population having received at least one dose. Vaccination numbers continue to increase at a rate of over half a million doses per day. The Centers for Disease Control and Prevention (CDC) had advised that the fully vaccinated could forgo masks and social distancing in most indoor and outdoor settings. Their revised guidance recommends that vaccinated people in areas with higher COVID transmission revert to wearing masks indoors again.

Originally published Thursday, August 5, 2021 at 4:55 p.m. ET.

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