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Constitutional Law professor says vaccine mandates historically hold up in court

Published: Aug. 13, 2021 at 10:33 PM CDT
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EAU CLAIRE, Wis. (WEAU) - With the push to get more Americans vaccinated against COVID-19, vaccine mandates have been popping up nationwide.

For the most part, employers, businesses and even some levels of governments have the ability to issue their own vaccine mandates according to Dr. Eric Kasper, Director of the Menards Center for Constitutional Studies at UW-Eau Claire.

In the Chippewa Valley, medical facilities including Mayo Clinic, Marshfield Medical Center and Prevea Health are requiring employees to get the shot.

“If a private employer were to mandate a vaccine as a general rule they would be able to do that but there are certain exemptions required by federal law two of the notable ones would be as they relate to religious beliefs and medical conditions,” said Dr. Kasper, Director of the Menards Center for Constitutional Studies at UW-Eau Claire.

Wisconsin recognizes at-will employment, meaning it could be possible for someone to be fired for refusing to be vaccinated if they cannot prove a religious or medical exemption.

“Private employers can fire someone for any reason or no reason at all as long as they are not firing someone for being a member of a protected class, for instance if someone was fired because of their race or age, that would not be legal,” explained Dr. Kasper. “Simply being unvaccinated is not what we would call under the law being in a protected class.”

Some levels of local governments even have the ability to issue their own vaccine mandates, like seen recently in New York City, where a mandate requires vaccination to enter gyms and some restaurants.

“What this relies on is local and state governments having general police power to protect public health, it is interpreted very broadly,” Dr. Kasper says precedence supports local vaccine mandates. In a 1905 U.S. Supreme Court case, Jacobson vs Massachusetts, the high court upheld a local mandate that people get vaccinated for small pox.

However, Dr. Kasper says the federal government does not have that same authority.

“It would be more constitutional if the federal government created things like taxing incentives people to get vaccinated, similar to what the affordable care act did for incentivizing someone to get health insurance coverage,” he said.

Dr. Kasper says he expects vaccine mandates to be challenged in court. Dr. Kasper says as long as vaccine mandates offer exemptions for medical and religious reasons, a lawsuit is unlikely to succeed.

“We have plenty of constitutional and statutory case law that shows a path for these types of mandates to be upheld in court.”

Recently, the U.S. Supreme Court refused a request to block Indiana University’s requirement for students to be vaccinated against COVID-19.

Because the COVID-19 vaccine is so political, Dr. Kasper says he expects some businesses to offer incentives for employees to get vaccinated rather than requiring the shot. He says employers can choose to impose other rules for unvaccinated workers like requiring masks or remote work.

If the FDA issues full approval to the COVID-19 vaccines currently approved for emergency use, Dr. Kasper says it wouldn’t have an impact on the constitutionality of a vaccine mandate, but it would be an advantage if it were to be challenged in court.

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