Are Vaccine Mandates Effective, Legal?

Speaker 1: 00:01 As the Delta variant spike in COVID-19 cases continues the move toward requiring proof of vaccination is growing on Monday. Governor Gavin Newsome said state employees and healthcare workers must submit evidence of vaccination or be subject to regular COVID-19 testing across the nation. The VA hospitals will also require proof of vaccination from all healthcare workers. These latest moves are expected to open the flood gates for private companies to start asking employees for vaccination proof as well. But how far can these vaccination requirements go? And could they provoke a backlash? Joining me is Dori rice law professor at UC Hastings and professor rice. Welcome to the program. Speaker 2: 00:46 Thank you for having me. Now Speaker 1: 00:48 You are an expert in vaccine law and policy. Did you think that requiring this kind of proof would be inevitable at some point independent? Speaker 2: 00:57 I expected that we will see some mandates. I didn't expect that we'll see as much as we were seeing, but as always with the COVID 19 pandemic it's because the virus keeps surprising us. We're seeing more cases and the Delta variant is proving even more contagious in worried. One Speaker 1: 01:14 Of the reasons given for not requiring proof of vaccination earlier was that the COVID vaccines still have not been given full approval by the FDA. They are still on emergency authorization that has to make a legal difference. Speaker 2: 01:29 It does. So the problem for those that support mandate is that the emergency use association act has a provision that says that the secretary of health has to inform recipients of the option to accept and refuse the vaccine. And for a long time RA administrative agencies and some observers saw that that means you cannot mandate the vaccine. It hasn't been tested until now because we've never had an EA vaccine for the entire population, but now we're facing it. And they're increasing reasons to think that yes, you can still mandate the vaccine under the way, but it's still an area where the law is not settled. Is there a difference Speaker 1: 02:10 Between mandating vaccinations and mandating proof of that explanations Speaker 2: 02:15 In practice? Yes. Or even in theory. So to give one example, Indiana law, prohibits businesses and agencies from requiring proof of vaccination, Indiana university mandated the vaccine and the attorney general interpreting the law said that the university can mandate the vaccine, but can't require documentation. All it can do is have students sign a statement that they've been vaccinated. So it made the big difference for that university. It's still monitoring the vaccine, but it can require documenting kind of exactly Speaker 1: 02:48 What the California state university says, uh, today that it will require students and faculty to be vaccinated, but they won't require proof. Just a student certification. They have been vaccinated. Is that good policy? Speaker 2: 03:02 I don't think it's bad policy because first of all, if we're talking about proof that we know that the vaccination records can be fake, there's, there's at least one person that's first in charges for forging them. On the other side, just requiring a statement, comes with a risk of potential criminal liability for a false statement. If that's what you do, lying to his state authority or lying to any government agency, including the federal is a criminal. So it's not without a sanction and it may be not more vulnerable to abuse than requiring it FX in card. Speaker 1: 03:42 Now there's an order from governor Newsome also mandates testing for people who do not have proof of vaccination, is that testing mandate enforced? Speaker 2: 03:52 Yes, it's probably is. So what governor Newsome is putting in place is what I think of as a soft mandate and employer can say, get the vaccine or you're fired. That's it's a very strong mandate and mandate that says vaccinate, or we'll put in place requirements for you to reduce the risks such as testing or masking is a softer one, the consequences, not as bad. And in some ways it's an easier option for the employee. The result of not vaccinating are not as severe. Speaker 1: 04:22 Now, some organizations and experts have stayed far away from requiring proof of vaccination out of concern, that there could be a backlash. Are you concerned about Speaker 2: 04:33 Backlash is possible? And it's a realistic concern and how big it will be, will depend on the workforce and its political circumstances. But the risk of a backlash has to be balanced with the risk of not vaccinating and not vaccinating without the mandate. Will we have enough vaccination without the mandate to prevent COVID-19 right now, the Delta variant is raging and not mandating creates a realistic risk of additional preventable deaths and harms. So yes, there is a risk of backlash. You always have to balance it against the risk of COVID-19. If you do not want it, now that the Speaker 1: 05:08 Government is involved in requiring proof of vaccinations, how far do you see that mandate extending into the private sector? Speaker 2: 05:15 There's the private sector has in some cases already mandated vaccines. So several hospitals have already required vaccines for the workforce. Several other businesses have either done it or considered it. Eh, I think the government involvement too, will not be the determining force here. I think businesses that are inclined to mandate have already been considering it governance, Newsome statements, for example, for healthcare facilities may push some, but there's already been quite a bit of cause for professional association to mandate. And I'm not sure that the state involvement will make such a difference or in Speaker 1: 05:52 California. Do you see vaccine passports will be needed to enter establishments? Speaker 2: 05:57 I think to some degree, I don't know if we'll see why widespread use some businesses may require vaccines and for some businesses, the right thing, remember that requiring vaccines has two effects. One is a limit making it harder for people who are not vaccinated to do certain things. But the other thing is enabling us to do things that we can do otherwise under the COVID-19 pandemic, we couldn't hold large events because it was unsafe because in passport can allow us to hold large events by allowing us to make them safer by requiring vaccines. I think we'll see some of it. Speaker 1: 06:33 I've been speaking with Dorie rice law professor at UC Hastings, professor rice. Thank you so much for speaking with us. Thank you for talking to me today.