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Breaking Down the Law: Are vaccine mandates legal?


Two new vaccines against Covid-19 are expected to be approved for emergency use by the FDA in the coming weeks, with healthcare workers among the first in line to receive the vaccine. Nevada health care workers could receive the vaccine as early as next week.

With the vaccine set to be disbursed on a mass scale, many are asking whether the vaccine will be mandatory.

What does the law say and who could be required to receive the vaccine?

The first, and biggest, question is whether the government mandate that all citizens get the Covid-19 vaccine.

In simple terms, “kind of.”

Starting with the Federal Government, there’s nothing in the constitution that would empower the federal government to mandate a vaccine. It is really a power left to the States and Cities.

It could, however, be required of government employees and members of the military.

The Federal government certainly has indirect power – they could require proof of vaccination in order to get a Passport or to get through TSA at the airport, for example. The States absolutely have the power to mandate that its citizens to be vaccinated, however. The cities do as well.

In the early 1900s, many states and cities mandated that citizens be vaccinated for smallpox.

What I would expect to see is that the state mandates for the vaccine be focused on certain groups, such as health care workers, teachers, law enforcement, legislators, and anyone employed by the states and cities.

As for the rest of us, the free market has a funny way of working things out. Private businesses have the right to require employees and customers to show proof of vaccinations.

Nevada is an “at-will” employment state, meaning an employer can fire you for any reason that is not discriminatory.

As for consumers, it could be very inconvenient to not be vaccinated.

Airlines could require all passengers to be vaccinated. So can trains, gyms, daycares, and private schools.

I doubt we’d see businesses like restaurants and grocery stores requiring proof of vaccination, but the point is that when it becomes inconvenient for people to go about their daily lives without a vaccine, the practical reality is that the majority will get vaccinated.

Since a vaccine is essentially a shortcut to herd immunity, the more people who get vaccinated, the closer the disease comes to being eradicated.

What about kids? A lot of parents are concerned about giving the vaccine to their children, especially since it’s really only been tested on adults.

I share that concern.

Legally speaking, children are the easiest group to legally mandate vaccinations. In Nevada, children who attend public schools must be vaccinated for diseases like Hepatitus A and B, Mumps, Meningitis, and Polio.

Adults who want to attend a Public University must also be vaccinated for Measles, Mumps and Rubella.

Nevada does not require a flu shot for school children, but a few states do, such as Ohio, Pennsylvania, New Jersey, and the City of New York (but not the State).

There is certainly a track record of requiring vaccinations when it comes to children attending public schools and adults attending public universities.

With COVID-19, the situation is a little different.

Unlike diseases I’ve mentioned, like Polio and Meningitis, COVID-19 has a statistical likelihood of harming children similar to the odds of being struck by lightning.

The concern with children is not so much harm to them as it is them being carriers of the disease and passing it on to adults, and particularly older adults.

So, what we’re stuck with is a situation where adults need the vaccine, but not so much children.

Half the country who have been surveyed have said they won’t get it, so the quandary is if the most vulnerable adults are vaccinated against COVID-19, is it really be necessary to force kids to be vaccinated?

I honestly don’t know what the answer is, but I would not expect that decision to be made until after there are clinical trials involving children.