Employers’ Vaccine Mandates Are Representative of America’s Failed Approach to Public Health

People waiting in line for polio shots in 1959.
People waiting in line for polio shots in Evansville, Indiana in 1959.AP Images

As COVID-19 vaccines become more available, should employers begin to require that their employees get vaccinated, or risk losing their jobs?

This question will become only more urgent in the weeks and months ahead, as more people have the opportunity to get vaccinated. Already, emerging data reveal low rates of uptake among workers at long-term-care facilities—whose residents are extremely vulnerable to COVID-19, and need to be surrounded by people who are not sick. Moreover, a significant plurality of Americans remain “vaccine hesitant.” For these reasons, not to mention the desire to end the pandemic, the prospect of employers using their power to pressure their workers to get vaccinated can be tempting.

Although important legal questions and limits remain—such as whether vaccines that have received only emergency-use authorization, rather than full FDA approval, can be mandated—the Equal Employment Opportunity Commission’s recent guidance assumes that employers can require, subject to limitations established by the Americans With Disabilities Act and Title VII, that their workers be vaccinated. This comports with the long-standing view that employers, especially in nonunionized workplaces, have broad power to set the terms and conditions of employment, including requirements that their employees be vaccinated. Doing so might be just the trick to overcoming people’s resistance. Although many Americans rebel when the government tells them what to do, they can, for obvious reasons, be quite acquiescent to the dictates of their employers.

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This is, in some ways, part of a deeper shift in which Americans have come to rely on the private sector to set the standards for behavior that impacts health. Think of it as the privatization of public health.

Unquestionably, the private sector has a role to play in public health—just look at the private companies that produced the vaccines and the private hospitals that have cared for the ill. But to rely on it to protect the public’s health is pure folly. As the pandemic has shown only too well, private and public interests do not always align. Before COVID-19, for example, hospitals focused on their bottom line and failed to stock up on personal protective gear or extra ventilators, even though they knew a pandemic could strike. Once one did, competitive pressures also pushed many businesses, such as restaurants and meatpacking plants, to stay open and overlook the health of their employees and communities, even as they became sources of infection. To depend now on the private sector to increase vaccination rates would further underscore America’s tepid commitment to the basic principles of public health.

For much of American history, the balance between public and private was not nearly so tilted. Resistance to vaccination is not new, but at one time, vaccine mandates and other public-health laws were seen as part of the social contract, that metaphoric agreement between individuals and their government—not private institutions—that was central to early American political thought. Under social-contract theory, individuals give up some of their liberty in return for the benefits of living in a society that protects their well-being. In the early days of the American republic, citizens understood that this contract covered protection from plagues. When epidemics struck—as they regularly did—citizens gave up some liberties so that the contagion could be controlled.

This was the view that the Supreme Court adopted in 1905’s Jacobson v. Massachusetts. In rejecting a constitutional challenge to a Cambridge, Massachusetts, law requiring vaccination against smallpox, Justice John Marshall Harlan explained that “real liberty” cannot exist “under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” As social-contract theory posits, the right to reject vaccination is one that individuals give up to live in a world without fear of smallpox.

For many decades, Jacobson served as the leading authority for the state’s power to require vaccination. Yet, even as courts continued to uphold vaccine laws, Jacobson’s social-contract roots were fraying. In recent years, public-health budgets have fallen, as Americans have spent ever more on personal health care. And despite the growing body of research showing the significant role that social factors, including poverty, education, the environment, and institutional racism play in determining our health, Americans have generally come to frame health in individual terms. To many Americans, including many of the country’s political leaders, preventing the spread of COVID-19 is largely a matter of personal responsibility. Laws that mandate masks or limit social gatherings are viewed by many as infringements on individual freedom.

Yet restrictions on liberty that are imposed by private contracts somehow thrive. Many Americans, for example, accept that their employers will decide whether they are insured, and if so, which private companies will provide them with health coverage. Likewise, many accept that insurers will decide which health-care providers they can see, and what services will be available. Many also accept, albeit unhappily, that contracts between their insurers and drug companies will set the prices they pay for their prescriptions. Indeed, all of the American health-care system’s complexities and costs are tolerated as the necessary price for respecting private contracts and the choices they supposedly reflect.

Americans also seem far more accepting when private companies track and sell their health data than when the government does so. People who won’t speak to their local health department’s contact tracers think nothing about Google and Facebook and practically every other app on their phone keeping tabs on their most personal health information as the price of using those services.

Americans also rely more and more on the private sector to provide basic public-health functions. They expect their employers to offer wellness programs and provide them with useful health information, even as they deplore public-sector nannyism. And they count on private hospitals, which have largely replaced once-common public hospitals, to invest in community health. While governmental public-health funding is reviled as wasteful, private initiatives to improve population health are viewed as “smart investments.”

The Supreme Court, too, seems to have embraced the view that health is mostly a private affair (despite the fact that it is largely financed through taxpayer dollars). In cases about the Affordable Care Act and those about the government’s power to regulate health-related information, the Court has taken the view that health is a matter of individual choice. But the Court also seems comfortable giving private employers, such as those that claim religious objections to contraception, power over the health of their employees.

Early in the pandemic, the courts seemed to temper their enthusiasm for individual choice in the face of public necessity. Last spring, federal courts rejected almost all challenges to state public-health orders. In May, the Supreme Court, by a 5–4 vote, rejected a challenge to California’s restrictions on in-person church services. But in November, after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, the Court changed direction. On Thanksgiving Eve, in Roman Catholic Diocese v. Cuomo, the Court blocked New York caps—by then no longer even in place—on in-person religious worship. In finding that the orders were unconstitutional, the five-justice majority held that the state had to prove that no other measures of preventing COVID-19’s spread existed that were less burdensome to religion. Tellingly, the majority did not mention Jacobson. In a concurring opinion, Justice Neil Gorsuch called that precedent a “modest decision” that was not relevant to contemporary First Amendment cases.

The Court’s new stance on government health orders is troubling because neither individual responsibility nor the private sector can, on its own, get us through this pandemic. As we have seen by its absence, the government’s role in public health is vital. Even when employers want to act in the best interest of their employees and customers—and no doubt many do—they may lack the information and means to do so. Although many large institutions have the capacity to research the science and assess the ethical implications of the health policies they impose, most small businesses have neither the resources nor the expertise to do the same. Nor can customers or workers in nonunionized workplaces readily make their views count. Indeed, the private sector is often seen as nimbler than the government precisely because it can eschew the necessity of public input and the threat of public accountability.

The delegation of public-health decision making to the private sector might also accelerate the consolidation of market power. Large employers and big corporations will be better able to assess and implement health policies that are good for their business. A vaccinated workplace may become a competitive edge, and large employers will then be better positioned to purchase vaccines and mandate them. Smaller employers and their workers will suffer as their stores, restaurants, and workplaces are left unvaccinated.

Most important, America’s reliance on the private sector to protect public health may further shatter what is left of the country’s fragile social contract. As individuals continue to rely on employers and private-sector institutions to substitute for a starved public-health system and the failing body politic, Americans might be even less inclined to step up as citizens and taxpayers to support policies that protect the community as a whole, including those who are most vulnerable. They might also come to demand even less of their political leaders, as the belief that health is a private affair is reaffirmed.

As it rolls out its own response to the pandemic, the Biden administration seems set on reasserting a more robust governmental role. If it succeeds in fixing the vaccination campaign and controlling the pandemic, perhaps Americans will remember that real liberty depends on the common good. If it fails, our already tattered social contract, as well as our real liberty, may be lost for good.