Vacci-Nation: Immunization Laws and Requirements in the U.S.
**Update: Washington State vaccination mandates for health care and education workers were terminated effective October 31st, 2022. The vaccination mandate for state executive cabinet and small cabinet agencies was lifted effective May 11, 2023. The order mandating vaccination for Supreme Court workers and encouraging other judicial branch courts and agencies to adopt similar mandates was ended effective at 11:59 PM on May 15, 2023. Portions of this post may be out of date.**
The library’s COVID focused posts addressed a swiftly changing legal landscape. Some information in this post may no longer be valid and some links may be broken or redirect to different content than originally published. Our intent is for these posts to be used for historical research purposes. Some resources with broken links may be found by searching the original URL in the Wayback Machine. We will continue to add law review articles to this post through early 2024.
With COVID-19 cases and restrictions on the rise, all eyes are on drug manufacturers and the race to see who can produce the most effective vaccine. The first company to announce a vaccine with a high efficacy rate was Pzifer which could receive an Emergency Use Authorization for its vaccine as early as Thursday, December 10th. Shortly thereafter, Moderna revealed a second vaccine (funded in large part, as it turns out, by country music legend Dolly Parton). Then shortly before Thanksgiving, the University of Oxford announced that they too had found promising results with a vaccine their scientists had produced in partnership with drug company AstraZeneca.
Yet, even as lockdowns are protested and scientists are asked to produce vaccines at warp speed, there are many who have indicated that when one becomes available for general distribution, they may not take it. But what if, by law, they don’t have a choice?
Long before the discovery of the human coronavirus, requiring citizens to get vaccinated for illnesses such as chicken pox, polio, measles and other infectious diseases has been on the docket of state legislatures. In fact, every state legislature in the U.S. has addressed the issue of immunization. According to the Centers for Disease Control and Prevention, “State vaccination laws include vaccination requirements for children in public and private schools and daycare settings, college/university students, and healthcare workers and patients in certain facilities. State laws also affect access to vaccination services by determining whether providing vaccinations to patients is within the scope of practice of certain healthcare professionals.”
It has been recognized that states have the authority to mandate vaccines. This authority falls within the state’s police power to protect public health and public safety. The U.S. Supreme Court recognized this in its landmark decision Jacobson v. Massachusetts, 197 U.S. 11 (1905). The case involved a Cambridge, Massachusetts minister who refused to submit to a mandatory small pox vaccination or pay a $5 fine for his refusal. The court ruled likewise in the school vaccination case Zucht v. King, 260 U.S. 174 (1922).
For employees, once the COVID vaccine is approved, your employer may require you to take it before returning to work. According to a 2009 legal interpretation by the US Occupational Health and Safety Administration, “[A]lthough OSHA does not specifically require employees to take the vaccines, an employer may do so. In that case, an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.”
Schools are another area where states have passed laws outlining immunization requirements and exemptions. Every state has laws on the books mandating vaccinations for incoming students. Until the measles outbreak of 2019, all states also allowed for parents to claim a religious exemption for their children. Seventeen states, including Washington, allowed for both religious and philosophical exemptions. However, following an alarming increase in measles cases, Washington became one of several states to reconsider the exemption. During the 2019 regular legislative session, Washington amended RCW 28A.210.090: Immunization Program — Exemptions. The statute remains in effect until July 1, 2022, when a new law passed earlier this year kicks in.
Check out the following resources for more information about vaccination laws and requirements:
Governor Inslee’s Vaccine Mandate Frequently Asked Questions
Vaccinating the Unvaccinated, President Biden’s COVID-19 Action Plan includes information on executive and agency vaccination directives
President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors
President Biden’s Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees
CDC’s State Vaccination Requirements site
U.S. Department of Justice, Office of Legal Counsel memo Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization
Washington State Bar Association NWSidebar Can Employers Require COVID Vaccines and Other Common Questions About Vaccinations at Work
Municipal Research and Services Center Vaccine Mandates: Accommodating Disability and Religious Belief Exemptions
Congressional Research Service Legal Sidebar An Overview of State and Federal Authority to Impose Vaccination Requirements
Congressional Research Service Report State and Federal Authority to Mandate COVID-19 Vaccination
Congressional Research Service Legal Sidebar Federal COVID-19 Vaccination Mandates and Related Litigation: An Overview
Congressional Research Service Insight Department of Defense Civilians and the Federal Employee COVID-19 Vaccination Mandate
Congressional Research Service Insight The Military’s COVID-19 Vaccination Mandate
Congressional Research Service Legal Sidebar Federal Employees and COVID-19 Vaccination Attestations: Immediate Takeaways
Congressional Research Service Report Legal Issues in COVID-19 Vaccine Development and Deployment
Congressional Research Service Legal Sidebar COVID-19 Vaccination Requirements: Potential Constraints on Employer Mandates Under Federal Law
Congressional Research Service Legal Sidebar COVID-19: Legal Considerations for Bringing a New Vaccine to Market
National Constitution Center’s Constitution Daily blog post On This Day, The Supreme Court Rules on Vaccines and Public Health
The Legality of Mandatory Vaccinations of K-12 Public School Students and the Implications for the COVID-19 Universe, Dianne Heckman, 388 Ed. Law Rep. 453 (2021) — contact the law library for this resource
COVID-19 Vaccine Mandates (video), Talks On Law
The COVID-19 Vaccine and the Role of the State (video), Talks On Law
Vaccine Mandates for Children (video), Talks On Law
Vaccinating Urban Populations in Response to COVID-19: Legal Challenges and Options, James G. Hodge, Jr. et al., 49 Fordham Urb. L. J. 1 (2021)
The COVID-19 Modern Era Pandemic — The Impact of the 1905 United States Supreme Court Decision of Jacobson: Compulsory Vaccination Under State Police Power vs. the Individual Right To Refuse a Vaccination, Roseann B. Termini, 27 Widener L. Rev. 165 (2021)
COVID-19 Vaccine Mandates for University Students, 24 N.Y.U. J. Legis. & Pub. Pol’y 1 (2021)
Subsidizing the Unvaccinated: Considering the Legality and Practicality of Vaccine Mandates for Those on Public Assistance, 48 J. Legis. 223 (2021)
Common Good Constitutionalism and Vaccine Mandates: A Review of Jacobson v. Massachusetts in Light of COVID-19, 21 Appalachian J. L. 1 (2021)
The First General Federal Vaccination Requirement: The OSHA Emergency Temporary Standard for COVID-19 Vaccinations, 6 ALR Accord 375 (2022)
Vaccines and the Law, The Yale Law Journal Forum Collection, vol. 131 (2021–2022)
Covid-19 Policies at Sports Venues: The NFL Should Have Required Attendees To Be Vaccinated, 29 Jeffrey S. Moorad Sports L.J. 1 (2022)
Anti-Vax FEAR* Speech: A Public-Health-Driven Policy Initiative When Counter-Speech Won’t Work (*Fake, Flawed, Fraudulent, False, Endangering, and Reckless), 32 Health Matrix 215 (2022)
A Rapid And Accurate PCR Test For Constitutionality Of Covid-19 Vaccine Mandates: The Appropriate Standard Of Review Adopted By Klaassen V. Trustees Of Indiana University, 67 Villanova Law Review 135 (2022)
Vaccine Passports and the Right to Exclude: How the Court’s Holding in Cedar Point Nursery v. Hassid Could Light Fire to the Debate on the Constitutionality of Vaccine Passport Requirements and Bans, 44 Campbell L. Rev. 395 (2022)
Thou Shalt Not Take Thy Lord’s Name in Vein: Vaccine Mandates & Religious Objectors, 46 Seton Hall Legis. J. 735 (2022)
Judicial Protection of Medical Liberty, 49 Fla. St. U. L. Rev. 515 (2022)
Vacci–Nation: A Look at Federal Authority to Mandate Vaccines, 29 Geo. Mason L. Rev. 1177 (2022)
Vaccine Passports as a Constitutional Right, 54 Ariz. St. L.J. 25 (2022)
First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold that the Free Exercise Clause Does Not Require Religious Exemptions, 71 Am. U. L. Rev. 2243 (2022)
Common Sense or Sensibility: Vaccine Hesitancy, Parens Patriae, and the Common Good, 19 J. Health & Biomedical L. 1 (2022)
Vaccine Passports as a Constitutional Right, 54 Ariz. St. L.J. 25 (2022)
Mandatory Vaccinations: The Long-Term Implications of Mandating a COVID-19 Vaccine, 15 Gov’t L. Rev. 1 (2022)
Misinformation Overload and the New Legal Landscape Surrounding COVID-19 Vaccines, 19 №3 ABA SciTech Law. 4 (2023) — contact the law library for this resource
Parental Vaccine Refusal as a Fundamental Right: Why Jacobson v. Massachusetts Cannot Justify Rational Basis Review for Compulsory Vaccine Mandates Applied to Minor Children, 17 Liberty U. L. Rev. 279 (2023)
Training a Public Accommodations Lens on Vaccine Passports, 27 Lewis & Clark L. Rev. 523 (2023)
From Smallpox to COVID-19: Social and Legal Responses to Vaccinations and Vaccine Mandates, 41 Quinnipiac L. Rev. 407 (2023) — contact the law library for this resource
Is There a Fundamental Right to Privacy When an Educational Institution Requires a Student to Disclose Proof of His or Her Vaccination Status?, 38 Touro L. Rev. 1453 (2023)
Vaccine Mandates in the COVID-19 Era: A Survey of Vaccine Laws, Societal Trends, and Ethics During the COVID-19 Pandemic, 59 Idaho L. Rev. 581 (2023)
Is Jacobson v. Massachusetts Viable After a Century of Dormancy? A Review in the Face of COVID-19, 39 Touro L. Rev. 247 (2024)
HeinOnline COVID-19: Pandemics Past and Present database — Vaccinations subcollection (ask Library staff about access)(LE)
