The COVID Delta variant is creating a Fourth Wave as infection rates begin to grow. The CDC July 6th guidelines,
- Masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated. Consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physical distancing cannot be maintained
The New York State Department of Health is currently
… reviewing the amended [CDC] guidelines and their decision on whether to relax mask wearing requirements in schools could impact whether the Department of Education adopts the new CDC recommendations. But for now New York City public school families should expect that teachers, staff and students regardless of vaccination status will need to face coverings in classrooms this fall, according to de Blasio.
Once upon a time the governor, under his emergency powers would have made all of these decisions; recently he has had other issues to deal with ….
De Blasio has taken a major step toward requiring vaccinations for health care workers,
Mayor Bill de Blasio said this week that more than 40,000 workers in city-run hospitals and health clinics will soon be required to either be vaccinated or be tested on a weekly basis.
Can a city (or a state) require vaccinations for all employees or a subset of employees?
If the Delta variant continues to spread and the infection data shows growing infection rates would the city be within legal discretion to require vaccinations for all school employees?
The Supreme Court has actually ruled on this issue (1905
. During a smallpox epidemic the city of Cambridge, Massachusetts required vaccinations of all residents, the penalty was a fine. The case, Jacobson v Massachusetts (1905) was decided by the Supreme Court,
“Justice Harlan stated the question before the Court: ‘Is this statute . . . inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State?’ Harlan confirmed that the Constitution protects individual liberty and that liberty is not ‘an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint’”:
There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.
Whether the current Supreme Court would make the same ruling today depends upon the conflict between individual liberty and protecting public health,
An excellent article concludes,
Public health programs that are based on force are a relic of the 19th century; 21st-century public health depends on good science, good communication, and trust in public health officials to tell the truth. In each of these spheres, constitutional rights are the ally rather than the enemy of public health. Preserving the public’s health in the 21st century requires preserving respect for personal liberty.
New York City facilitated vaccinations for school employees; I do not know the percentage of school employees that are vaccinated. Neither the governor nor the mayor has suggested requiring vaccinations; however, increasing infection rates and the conflict over school re-opening could raise the issue. As of now the city is planning for a full school re-opening without any remote option.
The question of whether employers can force unionized employees to be vaccinated is questionable,
As employers with union-represented employees, wages, hours, and other terms and conditions of employment are mandatory subjects of collective bargaining, meaning that changes can be made only if: (1) permitted by the applicable collective bargaining agreement (“CBA”); or (2) bargained with the union representing the employees. Although the National Labor Relations Board (“NLRB”) has not yet explicitly addressed whether a mandatory COVID-19 vaccination program is a compulsory subject of bargaining, NLRB precedent strongly suggests that it is. For example, in Virginia Mason Hospital, 356 NLRB 564 (2011), the NLRB held that an employer had a duty to bargain with its union-represented employees regarding a policy stating that employees must either get a flu shot or wear a mask while working.
It would appear that management, the city or the school district, would have to negotiate a vaccination policy with the collective bargaining entity, the union. It also would appear that school employees represented by unions cannot unilaterally be forced to be vaccinated without a policy negotiated with the union.
The city can require vaccinations for new hires.
The current Supreme Court has seemed anxious to reverse prior decisions, the decision to allow states to restrict voting rights, to gut Congressional legislation is a recent example.
Governor Cuomo, citing his emergency powers granted by the state legislature limited attendance at religious services, the religious organizations filed suit arguing the limitations violated their First Amendment rights.
In an unsigned opinion five of the conservative justices overturned COVID limitations on attendance at religious services imposed by the Governor Cuomo, writing,
Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.
Justice Sotomayor in a dissenting decision wrote,
Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.
Would the Court rule that vaccination requirements violate a person’s right to privacy? Would not surprise me.
Vaccinations for students have been in place for decades and are the domain of the state Department of Health; the state requires a number of vaccinations for an entry into school (See regulations here) with exemptions for religious or medical reasons.
The CDC recommends vaccinations for children twelve years of age or older; there has been no discussion about requiring vaccinations for age twelve children, of course, the Delta variant can change everything.
Six weeks until school re-opening.