As the COVID-19 pandemic continues to rage in parts of the United States, federal agencies, states, and municipalities have begun requiring vaccinations in certain circumstances in an effort to improve stalled vaccination rates. The Food and Drug Administration issued Emergency Use Authorizations (EUA) for three vaccines in the U.S., and legal challenges have largely centered around whether the vaccines’ EUA status precludes such mandates. The Justice Department’s Office of Legal Counsel issued an advisory opinion in July 2021 evaluating whether language under the EUA prevents entities from imposing vaccination requirements. Professor Dorit Reiss of UC Hastings Law discusses the opinion’s findings and explains the parameters of the mandates instituted in the Department of Veterans Affairs and in California for its employees and healthcare workers.
Dorit Reiss is a professor of law and the James Edgar Hervey '50 Chair of Litigation at UC Hastings College of the Law. Her research focuses on legal and policy issues related to vaccines.
Interview with Vaccine Law Scholar – Prof. Dorit Reiss
Joel Cohen (Host): Hello, and welcome to TalksOnLaw. I'm Joel Cohen. Today, we're going to talk about state and federal COVID-19 vaccine mandates – what they entail and their constitutional underpinnings. We're joined remotely by a leading vaccine law scholar, Prof. Dorit Reiss of UC Hastings. Welcome back to TalksOnLaw.
Dorit Reiss (DR): Nice to be back.
Host: This has, I'm sure, been an incredibly busy few weeks for you. Why don't we start with a quick overview. What's happened in terms of state and federal mandates?
DR: It has been a crazy time. Most recently we've seen four new developments. One, the Office of Legal Counsel, the president's lawyer, came out with an opinion that says that, yes, you can mandate a vaccine under an emergency use authorization (EUA). That was an open legal question. There's very little jurisprudence about it, and they gave a very thoughtful, reasoned analysis of why you can mandate it. Shortly after, the Department of Veteran Affairs mandated the vaccine for not just its agency staff but the workers in its extensive network of hospitals. On the 26th of July, the governor of California announced that they're going to require documentation of vaccine status from state workers and healthcare workers, private and public. The governor said they're not going to fire workers who are unvaccinated at this point, but if you're unvaccinated, you're going to have to undergo testing, weekly testing, and bi-weekly in highly affected areas, and have to mask. So California is imposing what I’d refer to as a soft mandate – a mandate that does not mean you're fired if you don't get vaccinated, but it does have a consequence. The governor of New York has said that there's not going to be a state mandate at this point but there are local mandates and the City of New York is mandating vaccines for healthcare workers. I expect we'll see quite a bit more action on vaccine mandates.
Office of Legal Counsel Advisory Opinion
Host: If you don't mind professor, why don't we go one-by-one starting at the federal level.
DR: So the first question is, can you mandate a vaccine under an EUA? And there was, there still is legal disagreement about that. This is the first vaccine to be authorized for the entire population under an EUA. It's never happened before, so the question hasn't come up previously. And the EUA law is written in a way that makes this confusing. It has a clause that says that the Secretary of Health has to inform recipients that they can accept or refuse a vaccine. And some people said if you can accept or refuse a vaccine, no mandates. Other people like me, and I will say that I had an opinion on this already, say: a) the law does mention that you can have consequences for refusing the vaccine so maybe you can mandate, and b) the law doesn't speak to anyone except the secretary. So it's reading into it as a prohibition on mandates for employers, universities, states, all of which have mandated in the past, is reading a lot into silence. So there was a legal debate on this. There's one low-level district court decision on it from Texas that says yes, you can mandate a vaccine under an EUA. And the Department of Veterans Affairs apparently asked the Office of Legal Counsel for advice because the federal government especially is subject to the EUA law, and mandating a vaccine that it's not allowed to mandate would be an issue.
Host: This legal opinion though isn't, it's not binding law in a courtroom, so what weight does it bring?
DR: This opinion is not going to be binding in a court, as you said. It's not going to even get very high deference because it's not a rule, it's just an advisory document. But it will have a direct impact on federal agencies because the Office of Legal Counsel is their formal advisor which means that it'll have a real practical effect. Court decisions take time, so at least for a while, federal agencies may go ahead and mandate. And it'll have persuasive influence. It's very well reasoned, very thought out, so it's something the court will look at and likely consider very seriously.
Host: And you say it's very well reasoned. Perhaps I'll be a little facetious. Is that because it's in line with your legal and policy views?
DR: So, like everybody, I can't think around my biases. So that probably feeds into it. But it doesn't match my viewing in many of the points. It says things that I haven't said before that I haven't thought about, and it’s simply nicely woven together as well. But I can't say that my bias doesn’t fit into it.
Department of Veterans Affairs Vaccine Mandate
Host: Well, let's go a little more into detail as to what the VA says. If you're an employee of the Department of Veterans Affairs and you choose not to be vaccinated, what happens to you?
DR: My understanding is that it's vaccinate or be fired for this one, with of course the required legal exemptions for people with disabilities under the Americans with Disabilities Act. If you have a disability including a medical reason not to vaccinate, you should be given an accommodation and religious accommodations for people who have sincere religious objections to the vaccine.
California Vaccine Mandate on State Employees and Healthcare Workers
Host: Well, let's turn to California. You're currently sitting in California today, Professor?
DR: I am. I'm in Fremont.
Host: And you teach there as well. Why don't we have a quick walk-through of the California mandate? What do we know so far?
DR: Right now, what we have is a press announcement by the governor. What the governor said was we have previously asked for voluntary vaccine documentation. We're now going to require it. You have to tell us whether you're vaccinated or not, and if you're not vaccinated you're going to have to be tested at least once a week and wear a mask. And he said it will apply to both state workers and health care workers, public and private. He said that he already has agreement from several private health care facilities. My reading is that they're not going to require health care facilities to do that but they already have a yes from several, including, for example, Kaiser, which is a really big facility.
Host: And let's take a step back. The California mandate does not mean that everyone in California must be vaccinated. It applies to California employees and who else?
DR: And on health care workers. Yes, it's requiring employees of the state, and the state has the right as an employer to impose such conditions on its employees, and on health care workers, the people who work most directly with the COVID-19 patients or with vulnerable populations that may be very harmed by COVID-19.
Host: You mentioned that the state has special rights when it comes to their employees. What's the legal justification when it comes to health care workers, many of whom are in private practice?
DR: So it depends how they do it. If they pass a law that says to hospitals, you have to demand vaccine documentation and you have to require testing and masks, they'll be drawing on their constitutional public health powers. The state has the power to regulate public health. That's what's called the police powers. If all they're doing is talking to health care facilities and saying we think it's a good idea if you do this, we're encouraging you to do this, then they don't need direct legal authority.
Host: Professor, does that mean that this vaccine is actually not coercive since there's an alternative? Instead of vaccine, you can do the masks and testing.
DR: It's a lot less coercive than a mandate that says vaccinate or you are fired, which by itself is not as coercive as a mandate that would impose a criminal fine on non-vaccination or involve people coming and holding you down and vaccinating you by force, which is something we don't do. So it's relatively low on coerciveness, but since at least some of these people are probably going to be anti-mask as well and since testing is unpleasant, they're going to see it as at least somewhat coercive.
Host: Well a thank you to Professor Dorit Reiss for taking the time to join us today, and thank you for watching TalksOnLaw.