With coronavirus cases again on the rise, governments enact mandatory vaccination policies

It’s been more than six months since Sandra Lindsay, a critical-care nurse at Long Island Jewish Medical Center in Queens, received the first COVID-19 vaccine administered in the United States. 

Since then, nearly 60 percent of Americans have been completely vaccinated against the coronavirus, according to data from the Centers for Disease Control. But with vaccination numbers leveling off over the past month or so and a recent jump in infection rates, employers and government entities are facing a conundrum: should vaccination against the coronavirus be mandatory? 

The federal government thinks so.

In a speech Thursday, President Joe Biden said all federal civilian employees and contractors must either receive the COVID-19 vaccine or face regular testing before returning to in-person workplaces. A few hours later, the Pentagon declared that members of the military would be subject to the same rules.

“After months and months of cases going down, we’re seeing a spike in COVID cases. They’re going up. Why? Because of this new form, this new variant called the ‘Delta variant,'” Biden said in a statement about the new policy. “Every federal government employee will be asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask no matter where they work; test one or two times a week.”

Biden’s announcement comes on the heels of a similar decision made by the Department of Veterans Affairs.

On Monday, Secretary Denis McDonough announced that COVID-19 vaccines would be a requirement for all Title 38 healthcare personnel—including physicians, dentists, podiatrists, optometrists, registered nurses, physician assistants, expanded-function dental auxiliaries and chiropractors—who work in, visit or provide care for patients of Veterans Health Administration facilities.

“It’s the best way to keep veterans safe, especially as the Delta variant spreads across the country,” McDonough said. “Whenever a veteran or VA employee sets foot in a VA facility, they deserve to know that we have done everything in our power to protect them from COVID-19. With this mandate, we can once again make—and keep—that fundamental promise.” 

Cities and counties across the United States are following suit.

Los Angeles instituted a mandatory vaccination policy last week. Likewise, in New York City, Mayor Bill de Blasio announced Tuesday that all city workers either have to get vaccinated or be tested bi-weekly. California Governor Gavin Newsom has put a similar policy into place for all state healthcare workers and employees.

The medical community is unified in recommending that facilities require employees to get the shot. The American Medical Association, comprised of more than 190 state and specialty medical societies and critical stakeholders, issued a statement Monday in support of mandatory vaccinations for healthcare workers.

“With more than 300 million doses administered in the United States and nearly 4 billion doses administered worldwide, we know the vaccines are safe and highly effective at preventing severe illness and death from COVID-19. Increased vaccinations among health care personnel will not only reduce the spread of COVID-19 but also reduce the harmful toll this virus is taking within the health care workforce and those we are striving to serve,” said Susan R. Bailey, M.D., immediate past president of the association. 

As municipal employers consider implementing their own policies, a ruling issued by the Department of Justice Tuesday on the legality of vaccine mandates is a helpful guide. Under federal law, the DOJ ruled in an 18-page opinion that employers can require employees to be vaccinated. 

“As access to the COVID-19 vaccines has become widespread, numerous educational institutions, employers, and other entities across the United States have announced that they will require individuals to be vaccinated against COVID-19 as a condition of employment, enrollment, participation, or some other benefit, service, relationship, or access,” wrote Dawn Johnsen, acting assistant attorney for the General Office of Legal Counsel. “Certain schools will require vaccination in order for students to attend class in person, and certain employers will require vaccination as a condition of employment.” 

The need to consider the legality of employer-mandated vaccinations arose following challenges under Section 564 of the Food, Drug, and Cosmetic Act, according to the ruling. The section in question “instructs that potential vaccine recipients are to be informed that they have the ‘option to accept or refuse’ receipt of the vaccine,” reads the ruling, which was issued for the deputy counsel to the president. “We conclude, consistent with FDA’s interpretation, that it does not. This language in section 564 specifies only that certain information be provided to potential vaccine recipients and does not prohibit entities from imposing vaccination requirements.” 

Similarly, the federal Equal Employment Opportunity Commission updated its guidance recently, noting that federal employment laws don’t prohibit employees from issuing mandatory vaccination policies either.