Yes, the Federal Government Can Require its Employees to Get the COVID-19 Vaccine

UPDATED September 13, 2021

The original version of this article was written shortly before President Biden unveiled his Path Out of the Pandemic COVID-19 Action Plan (the Path Out Plan or Plan) on September 9. The President’s Path Out Plan contains six major prongs and represents a sweeping overhaul of current COVID-19 measures for a staggering number of Americans.

With respect to federal employees, the Plan requires 

  • All federal executive branch workers to be vaccinated without a testing option. The President also signed an Executive Order directing that this vaccination requirement be extended to some employees of federal contractors that do business with the federal government.

Of even greater import, the Plan also provides that

  • President Biden will direct the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.

The suggestion in the article that the federal government could exercise the appropriate authority to get more Americans vaccinated has clearly been heeded.

On July 29, 2021, President Biden announced that every federal employee and onsite contractor must either certify (under penalty of perjury) that they received a COVID-19 vaccine, or else a) wear a mask on the job, b) physically distance from all other employees and visitors, c) take a COVID-19 test every week or twice weekly, and d) be subjected to restrictions on their official travel. Although Agencies might not initially ask for proof of vaccination (such as the CDC “white card”), they could if they reasonably believe the employee lied about their vaccination status in their attestation. Lying about vaccine status could result in employee discipline, up to and including termination and criminal prosecution (for perjury). Still, there are some federal employees who refuse to receive a COVID-19 vaccine, believing it is their right to be free from a mandatory vaccine. This of course begs the question: does the United States Constitution allow the federal government to require its employees and contractors to receive a vaccination as a condition of employment? Based on the Supreme Court’s long-standing interpretations of the Constitution, the answer is yes, the federal government can force its employees and contractors to get vaccinated.

State Governments Can Clearly Force Their Citizens to Get Vaccinated

The U.S. Supreme Court has twice held that states can require their citizens to get a vaccine. By the early 1900s, smallpox had been around for thousands of years, killing three in ten people it infected. A vaccine was developed in the 1800s and many states required their citizens and employees to get a vaccination, or else pay a daily fine for each day they were unvaccinated.  Cambridge, Massachusetts adopted just such a rule and one of its citizens, Henning Jacobson, fought his $5.00 fine for refusing the vaccine all the way to the Supreme Court, arguing it violated his rights under the 14th Amendment to the Constitution. The Court disagreed. Justice Harlan and six of his colleagues on the Court ruled in 1905 that state governments could enact such a law based on their constitutional “police power,” which enables states to enact laws that “protect the public health and the public safety.” In reaching this conclusion, Justice Harlan explained that “all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.” No individual right is completely free from restraint. Justice Harlan described how “even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others.” The great Justice Oliver Wendell Holmes Jr. boiled this down to terms we can all understand: “the right to swing my fist ends where the other man’s nose begins.” In other words, I cannot assert my rights and freedoms in a way that will deprive you of your rights and freedoms—while I can drink myself into a stupor at home, I can’t drive drunk because I might strike and kill a pedestrian.

In 1922, based on the same reasoning, the Supreme Court once again found “no substantial constitutional question” that cities could require students to get the smallpox vaccine before attending public or private schools.  Both of these cases have remained undisturbed over the course of the century since they were decided. Justice Amy Coney Barrett recently rejected an emergency application to the Supreme Court after a trial court and the 7th Circuit held that Indiana University could require returning students to be vaccinated against COVID-19.

The Federal Government Can Require Its Employees to Get Vaccinated

Although the federal government does not have the same constitutional police power as the states, it has a wide array of constitutional authority and laws on the books that permit it to require vaccines, and courts have similarly upheld many vaccination requirements for federal personnel over the years.  In 2002, the Court of Appeals for the Federal Circuit upheld the U.S. Navy’s decision to fire two employees who refused to get the anthrax vaccine before boarding a naval vessel: the employees’ “subjective fear of vaccination was not sufficient to excuse [their] failure to obey a direct [and lawful] order.” The Occupational Safety and Health Act requires the federal government, as any private employer, to provide “safe and healthful working conditions for their workers,” and “OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19.” Additionally, the Public Health Service Act enables the Department of Health and Human Services and/or the CDC to take steps “to prevent the introduction, transmission, or spread of communicable diseases” from foreign countries or between states—a grant of power to the federal government that includes vaccination requirements.

While religious and disability-related exemptions to mandatory vaccinations exist, we must also consider the rights of disabled coworkers whose health conditions create a higher risk of a severe COVID-19 diagnosis, regardless of their vaccination status. Indeed, the ACLU recently filed suit claiming that a South Carolina ban on school mask mandates violates the Americans with Disabilities Act because it forces parents of children with disabilities to decide between the health and safety of their at-risk children and their education. It isn’t difficult to make that same argument for at-risk federal employees who must choose between their health and safety and keeping their job if they must work alongside unvaccinated individuals.

Federal Employees’ Choice: Get Vaccinated, Comply, or Quit

As the case against the Navy shows, refusing a military or civilian Agency order to get vaccinated could result in discipline up to and including termination. History tells us that both the MSPB and the Federal Circuit will likely uphold that decision based on insubordination. Simply put, there is no constitutional right to refuse a vaccine, and doing so puts others’ – especially those with disabilities at-risk for severe diagnoses – health and safety at risk. The choice for any employee then is straightforward: get the vaccine, wear a mask and test weekly or bi-weekly, refuse and get fired, or quit. The Judge in the Houston Methodist Hospital case held exactly that in sustaining the vaccine mandate for the hospital’s health workers.

Nearly all deaths and hospitalizations due to COVID-19 are among the unvaccinated population. The longer the coronavirus infects, the more likely it is to morph into more deadly and vaccine-resistant mutations—indeed, some have already begun to emerge. After thousands of years, smallpox was eradicated completely in 1980, thanks to efforts to vaccinate the world’s population—its eradication has been hailed as “the biggest achievement in international public health.” Thanks to thousands of years of developments in medicine, we have the tools to eradicate or nearly eliminate the coronavirus in a fraction of the time it took to rid the world of smallpox. Federal employees must live up to the ideals they embody as public servants and do their part. Refusal is not an option, as the federal government as employer should make clear.