Can a vaccine be required by law? This question came up because I read that Bolsonaro, Brazil's president, was criticized by the opposition for saying that COVID-19 vaccinations won't be mandatory. The opposition said that the vaccine should be a requirement, which means that if they were in power, then everyone in Brazil would be forced to get vaccinated. Specifically for the United States, is it possible that getting vaccinated become a law? In other words, I would be breaking the law if I decide not to get vaccinated. Is something like this remotely possible? The reason I ask: countries are trying to develop a vaccine as fast as humanly possible and possibly trying to cut corners to have the vaccine approved. Superpowers like the US, Russia, and China are all making claims. Here in the US, being an election year, the CDC is already saying that two unidentified vaccines will be available in October or November. I feel this is being done in a hurry, and I wouldn't want the government to force me to get vaccinated with a brand-new drug with limited testing.
It was decided back in 1905 in the case of Jacobson v Massachusetts, 197 U.S. 11, that mandatory vaccination laws are constitutional in the US (the specific example being mandatory smallpox vaccination - through vaccination, this illness was eradicated globally). The court observed that 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. An American citizen, arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The power of the government to protect is not totally unfettered: its actions must be necessary. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. An attack on a mandatory vaccination law would probably focus on the question of necessity.
It would not prohibit Colorado from passing the law, but it could prohibit implementing the law. SCOTUS rulings (Powell v. McCormack, 395 U.S. 486; Term Limits, 514 U.S. 779) establish that neither Congress nor the States can require additional qualifications of federal candidates beyond those listed in the Constitution. The relevant question is whether a law imposes an additional &quot;qualification&quot; on a candidate for president. Every state imposes at least one requirement on a person seeking to be a candidate on the ballot in a state: they must somehow &quot;register&quot; as a candidate. So the Qualifications Clause is not interpreted to mean &quot;anybody can run for president as long as age and natural-born&quot;. The Anderson-Burdick doctrine allows certain kinds of requirements to be imposed on candidates, namely those that relate to a state's interest on properly managing elections. A no-felon law would clearly go way beyond the accepted state interest (regarding management of elections) reflected in Anderson-Burdick, and would be found to be as unconstitutional as requiring a candidate for president to have a law degree, or prohibiting a candidate from having a law degree.
You can't just interpret the word &quot;require&quot; in isolation, you have to focus on what is allowed vs. disallowed by law. Guidance point K.1 starts with the rhetorical question Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19? They respond that no federal EEO laws prohibit such a requirement &quot;subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations&quot; (thus providing an answer to the question whether it can always be &quot;required&quot;. However, they do not discuss the possibility that other laws (non-EEO, state, local: also contract law) that would prevent an employer from &quot;requiring&quot; a vaccination. They do not elaborate on ways that an employer might &quot;require&quot; a vaccination, leaving it to the inventive reader to figure out what legal leverage a company might have to get compliance. Assaulting non-compliant employees is not legal; withholding wages is not legal. Reassigning a non-compliant worker to working in the sub-basement may be legal, requiring a non-compliant worker to wear an anti-vaxer warning badge might be legal. Firing the employee, or reducing their hours to 0 until they comply, might be legal. But the EEOC is not advising employers in safe ways to sanction non-compliant workers, they are just stating their interpretation of applicable anti-discrimination law. Indeed, they can only address matters of discrimination, because that is what they address in general. They do not write the labor law regulations, that's the job of the Dept. of Labor. They are not giving legal advice as to the scope of allowed requirements set by employers.
The answer is they are quite different. The SCOTUS found almost 100 years ago that the Several States have the power to require vaccinations. This is one of the &quot;reserved powers&quot; under the constitution. The Texas Heartbeat law creates a regulation on doctors (similar) and a civil cause of action (very different). However, the biggest difference is that the older case permits the state to require medical treatment while the Texas law requires a medical justification for treatment. It seems uncontroversial to require a doctor's services to perform an abortion. However, now the Texas legislation is in effect codifying the medical ethics requirement to &quot;do no harm.&quot; Medical ethics do allow exceptions based on a specific situation, and so does the law. A mandatory vaccination law is almost the opposite. It guides doctors that the general risks of vaccination are not strong enough to be considered harmful when weighed against the benefits of the vaccination. But, of course, medical ethics would also allow exceptions based on specific situations, and so should the law. Fizz already cited the case: Zucht v. King https://supreme.justia.com/cases/federal/us/260/174.
In the absence of a contractual agreement saying otherwise, the lawsuit would probably just be subject to normal rules of tort liability. In that case, the contractor would probably lose his case unless he could prove that the one worker infected another through an act of negligence or could otherwise prove that the infected worker knew he was infected and posed a risk to others. In the basic negligence situation, the contractor would likely rely on the general duty we all have to avoid creating unreasonable risks of injury to third parties, and he would need to argue that Worker A somehow breached that duty. Coming to work knowing you're infected would almost certainly satisfy that standard, but it might be enough to simply show that Worker A was at a large gathering of unmasked people whose vaccination status was unknown. From there, he would also need to prove that breaching that duty caused him some injury, presumably by infecting Workers B through M, causing a work slowdown, causing missed deadlines, causing late fees, etc. The contractor might also pursue a claim for reckless, rather than negligent, conduct, if Worker A knew he was infected and came to work just the same. Or he might pursue an intentional tort claim if there was some reason to believe that Worker A was actually trying to get other people sick, as opposed to just ignoring the fact that such a risk existed. As I understand it, several states have also passed laws limiting liability for exposure to COVID in the workplace, so it's possible that none of these claims would be viable, no matter how strong the evidence.
Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged.
They can't overturn the decision; but they don't have to. The holding in Dobbs was that the US Constitution does not provide a right to an abortion, and so a state law prohibiting abortions is not unconstitutional. Congress can't &quot;overturn&quot; it in the sense that they can't make the Constitution provide such a right, short of a constitutional amendment. But that in itself doesn't stop them from providing such a right in other ways, e.g. through ordinary legislation. Under the Supremacy Clause, such a law would supersede any state bans; provided that it falls within the scope of Congress's enumerated powers, which assertion would itself probably be challenged in court. If it's within their legislative power, then there's no conflict with Dobbs. To give a more mundane example, nobody thinks that there is a constitutional right to have an airline ticket refunded within 24 hours of purchase. If the Supreme Court ever had occasion to rule on the question, they would surely hold that nothing in the US Constitution says that people have this right. But Congress does have the power, under the Commerce Clause, to pass legislation that confers such a right on consumers. They have done so, and this law would not in any way conflict with the aforementioned hypothetical Supreme Court ruling.
It means what it literally says, that safety and effectiveness have not been established in certain contexts. The rationale behind saying this is §201.57 of 21 CFR 201, a regulation that mandates giving warnings. It is permitted to use a device or prescribe a substance where it is not yet proven that it is effective or safe for that usage, but you must not imply that it is perfectly safe and effective in all contexts. This part of the federal regulations dictates language aimed at particular scientific uncertainties. Insofar as a patient is expected to give informed consent for a treatment, informing the patient that a treatment is to some extent unproven is an essential part of the information that must be given for informed consent. So you can interpret it as a flag to the patient (or the prescribing doctor) that there is greater risk.