In the spring and summer of 2021, several states across the United States passed laws restricting COVID-19 vaccination mandates. Some states prohibit state and local governments from mandating vaccines as a condition of employment or to deny access to services. Others, like Florida, Alabama, and Arkansas, also forbid businesses from requiring its customers to show proof of vaccination or even to be vaccinated for the use of its goods or services. Montana has one of the most restrictive laws, prohibiting employers from requiring vaccinations and from discriminating in any way based on vaccination status. Professor Dorit Reiss of UC Hastings Law discusses the states’ varying prohibitions and some legal challenges already making their way through the courts.
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.
FLORIDA STATUTE 790.251 §4 - Prohibits employers from prohibiting weapons in their parking lots.
DORMANT COMMERCE POWER - Constitutional law doctrine restricting states from interfering with interstate commerce.
MONTANA HOUSE BILL 702 §1 - Prohibits “an employer to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment based on the person's vaccination status or whether the person has an immunity passport” (May 7, 2021).
An Interview with Vaccine Law Expert, Prof. Dorit Reiss
Joel Cohen (Host): Hello, and welcome to TalksOnLaw. I’m Joel Cohen. Today, we're talking about vaccine law in a very special instance. We're talking about laws restricting COVID vaccine mandates. It's controversial, and we have a leading vaccine scholar here to walk us through it. Professor Dorit Reiss of UC Hastings, welcome to TalksOnLaw.
Dorit Reiss (DR): Thanks for having me.
Host: Professor, I know that you're sitting in California where there's actually a COVID mandate at the state level, but let's talk about what some other states are doing on the other end of the spectrum. When it comes to restricting COVID mandates, COVID vaccine mandates, why don't you give us a quick overview?
DR: Yes, we've seen at least 12 states do this. Some of them did it through governor executive orders, some of them are doing it by bills, and what they're doing varies. The vast majorities of states that acted address government only. They're telling the government, you the government, can't require vaccines for any services. Or for many of them, you can't require that government employees be vaccinated. A smaller minority requires businesses not to require vaccines or not to treat people differently based on vaccine status or not to ask about vaccine status – the laws apply there too. And an even smaller minority, I think only one or two states, I know of Montana, I think there's one or two more. It also prohibits private businesses from requiring that employees be vaccinated.
States That Restrict Government Vaccine Mandates
Host: Professor, why don't we go through these restrictive laws in order of how restrictive they actually are starting with the least restrictive. Are some of the laws mostly symbolic?
DR: I think so because in states where such a law can be passed the political environment is probably such that government isn't likely to mandate its employees be vaccinated or to condition services on vaccines. The one place where it might have a practical impact is to state universities. If a state university is considered a state agency, and that's going to vary by state law, then the state university may be prohibited from requiring vaccines under that law as well.
Host: Interesting, so even though some courts have come out to say that these types of school mandates are in fact constitutional, well if a state comes out in front of them and says well you can't do those types of mandates, that takes precedence.
DR: Exactly right. The state can limit universities for mandating.
States That Restrict Mandates on Customers
Host: Why don't we turn to the second rung of this restrictive ladder? Here, we're talking about states that are prohibiting the ability of companies to impose restrictions on their customers.
DR: Yes, it's telling companies you can't mandate vaccines from customers. You can't require a customer to show that they're vaccinated or to be vaccinated in order to provide service. And this is highly unusual because we do regulate private businesses but we generally regulate them in the public health and for public safety rather than prohibiting them from acting in the interests of public health and safety. I can think of one parallel, and it's, as far as I know, it's only a Florida law. There's a Florida law that prohibits private businesses from prohibiting weapons in their parking lot. Again, prohibiting private businesses from imposing a safety requirement. That's the only parallel I can think of.
Host: Prohibiting them from prohibiting them... so in other words, ensuring that Floridians can park their guns in the parking lot.
DR: Yeah, allowing Floridians to bring their guns into someone else's private property. Generally, you can set requirements on what people bring onto your property.
Restrictions on Vaccine Mandates in the Travel Industry
Host: This type of restriction sounds like it would be particularly impactful in the travel industry – take, for example, airlines. Does this mean that JetBlue or Southwest would need to tailor their policies to each state?
DR: That's a great question, and it really runs into some legal doctrines. And there's, in fact, right now, a lawsuit challenging this by a Florida cruise ship or a Norwegian cruise ship that travels through Florida. And they're challenging Florida's vaccine passport law saying that, among other things, it conflicts with the dormant commerce clause which prohibits states from interfering in interstate commerce. Because they're saying other states and other countries are requiring that our crew and passengers be vaccinated, and by prohibiting us from asking, you're making it harder for us to comply with other requirements; you're interfering with our travel. That's one of the several claims that this cruise ship is bringing against Florida.
Host: And since we have a constitutional scholar on the line, what were some of the others?
DR: One other claim is a preemption claim. They claim that the Florida law interferes with the ability of the company to comply with CDC regulations. So, there's a tension between federal and state regulation and the federal laws of trump. Another is that the Florida law interferes with the company's freedom of speech. I think that's a pretty weak claim because requiring vaccine status isn't exactly what I think of as speech. But the last claim is although states can regulate and interfere with freedom, they have to meet at least rational basis review to do that. So they have to show that the interference is reasonable and the cruise ship is arguing that this is completely unreasonable, arbitrary, and without basis.
Prohibiting Employers from Mandating Vaccines for Employees
Host: So we'll keep our eyes out as to how that case will be decided, but why don't we turn to the last rung the most restrictive types of mandate restrictions. Here, we're talking about states restricting employers from requiring their employees to be vaccinated.
DR: Yes, as far as I know, so far, Montana is the only state that has a law that I’ve seen. I think there's one or two more, and I know that Ohio for example is considering a bill that will prohibit employers from doing that, but it hasn't moved forward yet. This is even more unusual because it's basically telling an employer you can't make your workplace safer. Imagine a business owner that has a medical condition that makes COVID-19 very dangerous. Now, they can't have their little shop safe for them by requiring employees to be vaccinated. And it's also in tension with the employer's duty to provide a safe workplace, so it really is unusual in several ways.
Host: So imagine I’m running a nursing home in Montana, and my job is to keep my patients or my residents safe. Am I out of luck if I want to require a vaccination of my staff?
DR: You probably are out of luck, and it raises real questions because you can't make a convincing dormant commerce clause claim because you're not engaged in interstate commerce, and you really are in a situation where the result may be that you can't protect your patients from this. Of course, bills like these are political. Your best option is political lobbying, highlighting the problem, and if anything sadly happens, pointing out to legislators, you brought this disease into my nursing home.
Host: That was restrictions, on the other side incentives, in Montana is there anything prohibiting me from rewarding my staff that actually do get a vaccination? You know, adding the carrot instead of the stick.
DR: The Montana law prohibits treating employees differently according to vaccination status. So, it would actually run into that. It won't even allow you to require unvaccinated employees to be masked. It's everybody or no one.
Host: So it takes away the ability to coerce the staff or to reward the staff into getting vaccinated.
DR: Exactly, and I actually had questions from a journalist about what happens with in-house care. If you're employing a nanny, can you require the nanny to be vaccinated? And traditionally even limits on hiring and employment discrimination didn't apply to in-house business or to very small businesses, but this law is phrased very broadly, and it may well apply to a in-house situation.
Host: Well a thank you to Prof. Dorit Reiss for taking the time to join us today, and thank you for watching TalksOnLaw.