Mandatory Vaccinations: Precedent and Current Laws

Mandatory Vaccinations:

Precedent and Current Laws

Jared P. Cole

Legislative Attorney

Kathleen S. Swendiman

Legislative Attorney

May 21, 2014

Congressional Research Service

7-5700

www.crs.gov

RS21414

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service

Summary

Historically, the preservation of the public health has been the primary responsibility of state and

local governments, and the authority to enact laws relevant to the protection of the public health

derives from the state’s general police powers. With regard to communicable disease outbreaks,

these powers may include the enactment of mandatory vaccination laws. This report provides an

overview of the legal precedent for mandatory vaccination laws, and of state laws that require

certain individuals or populations, including school-aged children and health care workers, to be

vaccinated against various communicable diseases. Also discussed are state laws providing for

mandatory vaccinations during a public health emergency or outbreak of a communicable

disease.

Federal jurisdiction over public health matters derives from the Commerce Clause of the United

States Constitution, which states that Congress shall have the power “[t]o regulate Commerce

with foreign Nations, and among the several States....” Congress has enacted requirements

regarding vaccination of immigrants seeking entry into the United States, and military regulations

require American troops to be immunized against a number of diseases. The Secretary of Health

and Human Services has authority under the Public Health Service Act to issue regulations

necessary to prevent the introduction, transmission, or spread of communicable diseases from

foreign countries into the states or from state to state. Current federal regulations do not include

any mandatory vaccination programs; rather, when compulsory measures are needed, measures

such as quarantine and isolation are generally utilized to halt the spread of communicable

diseases.

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service

Contents

History and Precedent ...................................................................................................................... 1

State Mandatory Vaccination Laws.................................................................................................. 2

School Vaccination Requirements ............................................................................................. 2

Health Care Workers.................................................................................................................. 5

Vaccination Orders During a Public Health Emergency ........................................................... 7

Model State Emergency Health Powers Act .............................................................................. 8

Role of the Federal Government ...................................................................................................... 9

Contacts

Author Contact Information........................................................................................................... 11

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 1

History and Precedent

At the end of the 20

century, the Centers for Disease Control and Prevention (CDC) published

its list of the “Ten Great Public Health Achievements” for the United States from 1900 to 1999.

Number one on the list was vaccination.

Vaccination has resulted in the eradication of smallpox

worldwide, and in the control of many other vaccine-preventable diseases.

Mandatory

vaccination programs, such as school immunization requirements, have played a major role in

controlling rates of vaccine-preventable diseases in the United States.

Historically, the preservation of the public health has been the primary responsibility of state and

local governments, and the authority to enact laws relevant to the protection of the public health

derives from the state’s general police powers.

With respect to the preservation of the public

health in cases of communicable disease outbreaks, these powers may include the institution of

measures such as quarantine and isolation

or the enactment of mandatory vaccination laws.

Mandatory vaccination laws were first enacted in the early 19

century, beginning with

Massachusetts’ smallpox vaccination law in 1809.

Jacobson v. Massachusetts is the seminal case regarding a state or municipality’s authority to

institute a mandatory vaccination program as an exercise of its police powers.

In Jacobson, the

Supreme Court upheld a Massachusetts law that gave municipal boards of health the authority to

require the vaccination of persons over the age of 21 against smallpox, and determined that the

vaccination program instituted in the city of Cambridge had “a real and substantial relation to the

protection of the public health and safety.”

In upholding the law, the Court noted that “the police

power of a State must be held to embrace, at least, such reasonable regulations established

directly by legislative enactment as will protect the public health and the public safety.”

The

Court added that such laws were within the full discretion of the state, and that federal powers

CDC, U.S. Dep’t of Health & Human Servs., Ten Great Public Health Achievements–United States, 1900-1999, 48

ORBIDITY

ORTALITY

KLY

. 12, 241 (1999).

See W

ORLD

EALTH

RGANIZATION

WHO

ECHNICAL

EPORT

ERIES

926 (2004) available at

http://www.who.int/biologicals/publications/trs/areas/vaccines/smallpox/Annex%201%20%2827-

64%29TRS926Smallpox2003.pdf?ua=1 (hereinafter T

ECHNICAL

EPORT

); W

ORLD

EALTH

RGANIZATION

MMUNIZATION

OVERAGE

(February 2014), http://www.who.int/mediacentre/factsheets/fs378/en/.

Orenstein, Walter A, The Role of Measles Elimination in Development of a National Immunization Program, 25(12)

Pediatr. Infect. Dis. J. 1093, 1093-1101 (2006) available at http://www.ncbi.nlm.nih.gov/pubmed/17133153.

See The People v. Robertson, 134 N.E. 815, 817 (Ill. 1922).

For more information on state and federal quarantine authority, see CRS Report RL33201, Federal and State

Quarantine and Isolation Authority, by Kathleen S. Swendiman and Jennifer K. Elsea.

Starting with the smallpox vaccine, vaccines have been used to halt the spread of disease for over 200 years. Donald

A. Henderson & Bernard Moss, Smallpox and Vaccinia, in V

ACCINES

74, 75 (Stanley A. Plotkin & Walter A. Orenstein

eds., 3d ed. 1999). See also Howard Markel, M.D. Life, Liberty and the Pursuit of Vaccines, N.Y.

IMES

(February 29,

2011), http://www.nytimes.com/2011/03/01/health/01smallpox.html?_r=1&ref=health.

AWRENCE

OSTIN

UBLIC

EALTH

OWER

UTY

ESTRAINT

, 181 n.27 (2000).

197 U.S. 11 (1905).

Id. at 31. The Massachusetts statute in question reads: “Boards of health, if in their opinion it is necessary for public

health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants of their towns, and

shall provide them with the means of free vaccination. Whoever refuses or neglects to comply with such requirement

shall forfeit five dollars.” M.G.L.A. c. 111, §181 (2014).

Jacobson, 197 U.S. at 25.

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 2

with respect to such laws extended only to ensure that the state laws did not “contravene the

Constitution of the United States or infringe any right granted or secured by that instrument.”

The Court addressed constitutional concerns raised by the petitioner in Jacobson, but remained

unconvinced that his rights were “contravened” by the mandatory vaccination program. The

petitioner argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive,

and, therefore, hostile to the inherent right of every freeman to care for his own body and health

in such way as to him seems best; and that the execution of such a law against one who objects to

vaccination, no matter for what reason, is nothing short of an assault upon his person.”

The

Court rejected the petitioner’s constitutional challenge and noted that “the liberty secured by the

Constitution of the United States to every person within its jurisdiction does not import an

absolute right in each person, to be, at all times and in all circumstances wholly free from

restraint.”

However, the Court did acknowledge limits to the state’s power to protect the public

health and set forth a reasonableness test for public health measures:

[I]t might be that an acknowledged power of a local community to protect itself against an

epidemic threatening the safety of all, might be exercised in particular circumstances and in

reference to particular persons in such an arbitrary, unreasonable manner, or might go so far

beyond what was reasonably required for the safety of the public, as to authorize or compel

the courts to interfere for the protection of such persons.

State Mandatory Vaccination Laws

School Vaccination Requirements

Every state and the District of Columbia has a law requiring children entering school to provide

documentation that they have met the state immunization requirements.

In 1827, Boston was the

Id.

Id. at 26.

Id. In Adams v. Milwaukee, 228 U.S. 572, 581-82 (1913), the Supreme Court reaffirmed Jacobson’s holding that

states may delegate the power to order vaccinations to local municipalities for the enforcement of public health

regulations. See also Zucht v. King, 260 U.S. 174, 176 (1922) (holding that vaccination laws do not discriminate

against schoolchildren to the exclusion of others similarly situated, i.e., children not enrolled in school); Prince v.

Massachusetts, 321 U.S. 158 (1944) (holding generally that the right to practice religion does not include the liberty to

jeopardize the wellbeing of minors).

Id. at 28. Smallpox vaccinations are no longer administered since smallpox has been eradicated worldwide as of

1980. See T

ECHNICAL

EPORT

supra note 2. One author has suggested that while Mr. Jacobson might be successful in

his refusal to be vaccinated against smallpox today because smallpox has been eradicated, the threat of terrorists using

smallpox as a weapon might make the use of the vaccine a reasonable measure yet again. Andrew Zoltan, Jacobson

Revisited: Mandatory Polio Vaccination as an Unconstitutional Condition, 13 G

ASON

735, 747-752

(2005). See also CRS Report RS21288, Smallpox: Technical Background on the Disease and Its Potential Role in

Terrorism, by Frank Gottron.

James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal

Perspectives, 90 K

J. 831, 868-73 (2001/2002). See N

ATIONAL

ONFERENCE OF

TATE

EGISLATURES

TATES WITH

ELIGIOUS AND

HILOSOPHICAL

XEMPTIONS FROM

CHOOL

MMUNIZATION

EQUIREMENTS

(December 2012),

http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 3

first city to require vaccination against smallpox for public school students.

Other cities and

states adopted the policy, and state statutes were amended as new vaccines were introduced.

Many modern school vaccination laws are the result of measles outbreaks in the 1960s and

1970s.

Generally, states use the Centers for Disease Control and Prevention’s schedule of

immunizations as a guide, and require children to be vaccinated against a number of diseases on

the schedule, including diphtheria, measles, rubella, and polio.

Various state laws also require

vaccination against hepatitis B and meningococcal disease for incoming college and university

students.

In addition, Virginia and the District of Columbia require female students to be

vaccinated against the Human Papillomavirus (HPV).

Recently, some states and cities have

begun requiring young children in preschool or daycare to receive influenza vaccinations.

Despite the wide-spread imposition of school vaccination requirements, many states provide

exemptions for medical, religious, or philosophical reasons. These provisions vary state by state,

with medical exemptions for children who may suffer adverse effects from the vaccine being the

most common. Thus, all states allow medical exemptions for those whose immune systems are

compromised, who are allergic to vaccines, are ill at the time of vaccination, or have other

medical contraindications to vaccines.

Generally, for a medical exemption, parents or guardians

must provide documentation from a physician.

Nearly all states grant exemptions for persons

who oppose immunizations for religious reasons.

Exemptions based on philosophical or moral

convictions in opposition to immunization are less common but are provided by 19 states.

Some

Id. at 851.

Id. at 867.

Id. at 868.

See C

ENTERS FOR

ISEASE

ONTROL AND

REVENTION

ACCINES AND

MMUNIZATIONS

(February 7, 2013),

http://www.cdc.gov/vaccines/schedules/index.html (hereinafter CDC

ACCINES

See S

TATE

NFORMATION

EPATITIS

REVENTION

ANDATES FOR

OLLEGES AND

NIVERSITIES

MMUNIZATION

CTION

OALITION

(June

29,

2010), http://www.immunize.org/laws/hepbcollege.asp; S

TATE

NFORMATION

ENINGOCOCCAL

REVENTION

ANDATES FOR

OLLEGES AND

NIVERSITIES

MMUNIZATION

CTION

OALITION

(June

2011),

http://www.immunize.org/laws/menin.asp.

See Va. Code 32.1-46 (2014); D.C. Code 7-1651.04(b) (2014).

See N

ORK

ITY

OARD OF

EALTH

NFLUENZA

ACCINATION

EQUIREMENTS FOR

HILDREN IN

AYCARE OR

RESCHOOL

(last visited May 5, 2014), http://www.nyc.gov/html/doh/downloads/pdf/imm/day-care-flu-faq.pdf. New

Jersey and Connecticut have similar requirements. See S

TATE

NFORMATION

MMUNIZATION

CTION

OALITION

(December 1, 2010), http://www.immunize.org/laws/flu_childcare.asp.

ATIONAL

ONFERENCE OF

TATE

EGISLATURES

TATES WITH

ELIGIOUS AND

HILOSOPHICAL

XEMPTIONS FROM

CHOOL

MMUNIZATION

EQUIREMENTS

(December 2012), http://www.ncsl.org/Default.aspx?TabId=14376.

For example, in Colorado, an exemption from the vaccination requirements may be obtained by submitting to the

school a certification from a licensed physician that “the physical condition of the student is such that one or more

specified immunizations would endanger his or her life or health or is medically contradicted due to other medical

conditions.” C

OLO

TAT

§25-4-903(2)(a) (2014).

Two states, Mississippi and West Virginia, do not provide for an exemption based on religious beliefs. The

Mississippi Supreme Court has held that religious exemptions to mandatory vaccination violate equal protection rights

under the Fourteenth Amendment because the exemptions “require the great body of school children to be vaccinated

and at the same time expose them to the hazard of associating in school with children exempted under the religious

exemption who had not been immunized as required by the statute.” Brown v. Stone, 378 So.2d 218, 223 (Miss. 1979).

See CRS Report RL34708, Religious Exemptions for Mandatory Health Care Programs: A Legal Analysis, by Cynthia

Brougher.

The

19 states that, as of 2012, allowed philosophical exemptions for persons who object to immunizations because of

personal, moral or other nonreligious beliefs are Arizona, Arkansas, California, Colorado, Idaho, Louisiana, Maine,

Michigan, Minnesota, Missouri (applies only to daycare, preschool and nursery school), North Dakota, Ohio,

(continued...)

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 4

states specify that religious or philosophical beliefs be “sincere” or “conscientiously held.”

The

statutes allowing religious exemptions vary, with some requiring only a statement of dissent from

the student, parent, or guardian, and others requiring a more specific statement regarding the

child’s membership in a religious denomination that opposes immunizations.

In addition, states

that require the HPV vaccination offer broad opt-outs for parents who simply apprise themselves

of HPV’s risks, without a medical exemption or religious objection requirement.

Compulsory vaccination laws as a prerequisite for school enrollment have been the subject of

numerous court cases.

In Zucht v. King, the Supreme Court upheld a local ordinance requiring

vaccinations for schoolchildren.

The Court invoked Jacobson for the principle that states may

use their police power to require vaccinations, and noted that the ordinance did not bestow

“arbitrary power, but only that broad discretion required for the protection of the public health.”

In turn, most lower courts have given considerable deference to the use of the states’ police power

to require immunizations to protect the public health.

For example, West Virginia does not offer

a religious exemption from school vaccination requirements, but the United States Court of

Appeals for the Fourth Circuit has rejected free exercise, equal protection, and substantive due

process challenges to the law.

Nonetheless, when states do offer religious exemptions, they generally may not be limited to

“recognized religious organizations,” as some courts have invalidated such provisions as violating

both the Establishment and Free Exercise Clauses.

Courts often construe these exemptions

broadly, and prevent the state from inquiring into the sincerity of a parent’s religious objections.

(...continued)

Oklahoma, Pennsylvania, Texas, Utah, Vermont, Washington, and Wisconsin. N

ATIONAL

ONFERENCE OF

TATE

EGISLATURES

TATES WITH

ELIGIOUS AND

HILOSOPHICAL

XEMPTIONS FROM

CHOOL

MMUNIZATION

EQUIREMENTS

(December 2012), http://www.ncsl.org/Default.aspx?TabId=14376.

See, e.g., M.

G.L.A.

c. 76, §15 (2014); M

INN

TAT

§121A.15 (2014).

See, e.g., L

TAT

. §17:170E (2014);

TAT

. §72-5209(b)(2) (2014). In Galinsky v. Board of

Education of New York, 213 F.3d 626 (2d Cir. 2000), the circuit court upheld the district court’s finding that the

parents’ claim for a religious exemption was motivated by their personal fears for their daughters’ wellbeing, and not

by religious beliefs.

See Va. Code 32.1-46 (2014); D.C. Code 7-1651.04(b) (2014).

Steve P. Calandrillo, Vanishing Vaccinations: Why are So Many Americans Opting Out of Vaccinating Their

Children?, 37 Mich. J.L. Reform 353, 385-388 (2004).

260 U.S. 174 (1922).

Id. at 177.

Calandrillo, supra note 30, at 387-388. See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); Zucht v. King, 260

U.S. 174, 176 (1922); Adams v. Milwaukee, 228 U.S. 572, 581-82 (1913); Seubold v. Fort Smith Special Sch. Dist.,

237 S.W.2d 884, 887 (Ark. 1951) (mandatory school vaccination does not deprive individuals of liberty and property

interests without due process of law); McCartney v. Austin, 293 N.Y.S. 2d 188, 200 (N.Y. 1968) (New York

vaccination law does not interfere with freedom to worship since Roman Catholic faith does not proscribe vaccination).

See Workman v. Mingo Cty. Bd of Educ., 419 Fed.Appx. 348 (4

Cir. 2011).

Compare Sherr v. Northport-East Northport Union Free School Dist., 672 F.Supp. 81 (E.D.N.Y. 1987) (invalidating

a limitation for “recognized religious organization” and ruling that plaintiffs were included in the exemption) with

Boone v. Boozman, 217 F.Supp.2d. 938 (E.D. Ark. 2002) (invalidating the entire religious exemption on establishment

and free exercise grounds).

See Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651, 654-55 (E.D.N.Y. 1994) (holding that a Jewish parent’s

“sincere religious belief” may support an opposition to immunizations, even though the Jewish religion does not

prohibit vaccinations); Jones ex rel. Jones v. State, Dep’t of Health, 18 P.3d 1189, 1195 (Wyo. 2001) (health

department may not require that a student provide a medical reason for seeking a waiver from immunization); In re

LePage, 18 P.3d 1177, 1180 (Wyo. 2001) (holding that a health department may not inquire into the sincerity of a

(continued...)

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 5

However, some courts have found that certain parents’ objections are personal, rather than

religious in nature, and have upheld the denial of exemptions on these grounds.

Health Care Workers

A number of states have laws requiring employees of certain health care facilities, such as

hospitals and nursing homes, to be vaccinated against diseases such as measles, mumps, and

rubella. Such laws, which vary widely, generally contain opt-out provisions where a vaccine is

medically contraindicated or if the vaccine is against the individual’s religious or philosophical

beliefs.

A few states have laws pertaining to influenza vaccination of health care workers, and

most that do provide for voluntary influenza immunization programs and staff education

measures for employees; however, a few states have mandatory requirements for influenza

vaccinations for health care workers.

During the 2009 influenza A(H1N1) pandemic, despite an extensive public education campaign,

less than half of health care workers were vaccinated against pandemic influenza.

In August

2009, the New York State Health Department amended its regulations to require that health care

workers at hospitals, in home health care agencies, and in hospice care be immunized against

influenza viruses as a precondition to employment and on an annual basis.

This regulation,

issued on an emergency basis, did not permit any exceptions to the influenza vaccination mandate

except for medical contraindications. Lawsuits were filed challenging the regulation’s validity,

and on October 16, 2009, a state judge issued a temporary restraining order suspending its

application to New York health care workers.

On October 22, 2009, Governor David A.

Paterson announced the suspension of the flu shot mandate for health care employees due to the

current shortage of both the seasonal flu vaccine and the pandemic flu vaccine.

However,

effective July 31, 2013, New York state requires health care workers not immunized against

influenza to wear a surgical or procedure mask during times the Health Commissioner determines

(...continued)

parent’s religious objection to immunizations).

See Caviezel v. Great Neck Public Schools, 500 Fed. Appx. 16 (2d Cir. 2012); Check ex rel. MC v. New York City

Dep't of Educ., 13-CV-791 SLT LB, 2013 WL 2181045 (E.D.N.Y. May 20, 2013).

Megan C. Lindley et al., Assessing State Immunization Requirements for Healthcare Workers and Patients, 2 A

REVENTIVE

EDICINE

, 459-465 (2007).

The CDC maintains a continuously updated online database of state laws pertaining to vaccination requirements for

health care workers. See C

ENTERS FOR

ISEASE

ONTROL AND

REVENTION

TATE

MMUNIZATION

AWS FOR

EALTHCARE

ORKERS AND

ATIENTS

(current as of December 2013), http://www2a.cdc.gov/nip/StateVaccApp/

statevaccsApp/default.asp. See generally Abigale L. Ottenberg, Joel T. Wu, and Gregory A. Poland, et al., Vaccinating

Health Care Workers Against Influenza: The Ethical and Legal Rationale for a Mandate, 101 Am. J. P. Health 212-216

(2011).

K.M. Harris et al., Influenza Vaccine - Safe, Effective, and Mistrusted, 363 N.E.

. 2183-2185 (2010).

N.Y. Comp. Codes R. & Regs. tit. 10, §66-3.2 See also Press Release, Richard F. Daines, New York State Health

Commissioner (September 24, 2009) available at http://www.health.state.ny.us/press/releases/2009/2009-09-

24_health_care_worker_vaccine_daines_oped.htm.

The temporary restraining order issued by state Supreme Court Judge Thomas J. McNamara, may be accessed at

http://op.bna.com/hl.nsf/r?Open=sfak-7wvsxh.

See Anemona Hartocollis & Swell Chan, Flu Vaccine Requirement for Health Care Workers is Lifted, NYT

IMES

COM

(October 22, 2009), http://www.nytimes.com/2009/10/23/nyregion/23flu.html?_r=0. In September, 2010, Sen. Tom

Duane of the New York state legislature suggested the issue be reconsidered.

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 6

influenza is prevalent.

New Hampshire has a similar requirement which has been challenged

under the Due Process Clause in federal district court.

In the private sector, employers sometimes require health care workers to be vaccinated against

communicable diseases as a condition of employment, unless a state law applies which permits

employees to opt out.

A number of professional organizations, including the Infectious Diseases

Society of America and the American College of Physicians, endorse the proposition that health

care workers have a professional and ethical responsibility to help prevent the spread of infectious

pathogens among patients and themselves, and that health care workers should receive annual

influenza vaccinations as a condition of employment and professional privileges.

In 2004,

Virginia Mason Hospital in Seattle, WA, became the first hospital in the nation to make

vaccination a condition of employment for all of its employees. Within three years, the hospital

reported 98% staff coverage, except for 2% of the staff who refused for medical or religious

reasons.

Staff who refuse the vaccine are required to wear surgical masks when in the hospital.

Other hospitals in the private sector have instituted similar mandatory flu vaccination policies,

and some policies have been the subject of lawsuits.

News reports have highlighted health care

workers fired for refusing to be vaccinated against influenza.

Challenges have been brought to such requirements on several grounds. For example, the

Washington State Nurses Association filed suit against Virginia Mason Hospital in 2007

alleging that implementing the mandatory flu vaccination policy without first negotiating

with the nurses’ union violated the Labor Management Relations Act.

The Court of

Appeals for the Ninth Circuit upheld an arbitrator’s decision prohibiting Virginia Mason

Hospital from unilaterally implementing the vaccination policy without bargaining with the

The requirement applies during “influenza season,” as determined by the Commissioner. See New York State Dept.

of Health, Regulation for Prevention of Influenza Transmission by Healthcare and Residential Facility and Agency

Personnel (last updated April 2, 2014), http://www.health.ny.gov/diseases/communicable/influenza/seasonal/providers/

prevention_of_influenza_transmission/.

See SEIU Healthcare Employees Union, Dist. 1199 v. Fine, et al., Case 1:12-cv-00894-ML-PAS (D.R.I. December 6,

2012) available at SEIU Healthcare Employees Union, Dist. 1199 v. Fine, et al., Case 1:12-cv-00894-ML-PAS.

The Joint Commission, a private accreditation body, requires accredited organizations such as hospitals and skilled

nursing facilities to offer influenza vaccinations to licensed independent practitioners and staff as a condition of

accreditation. See O

CCUPATIONAL

AFETY AND

EALTH

DMINISTRATION

(OSHA)

ACT

HEET

EASONAL

NFLUENZA

ACCINATION

–

MPORTANT

ROTECTION FOR

EALTHCARE

ORKERS

(November 2011) available at

http://www.osha.gov/Publications/seasonal-flu-factsheet.pdf.

A list of organizations and links to their policy statements may be found at http://www.immunize.org/honor-roll/.

The American College of Physicians policy declares that “health care workers that cannot receive flu vaccines due to

medical or religious contraindications should either be reassigned to non-patient care areas during influenza season or

wear a mask at all times during influenza season in the context of patient care.” S.A. Fryhofer, Immunization 2011:

Expanding Coverage, Enhancing Protection, 154 A

NNUALS

NTERNAL

. 204-206 (2011).

Anita Manning, Hospitals Shoot for Employees to Get Flu Vaccine, USAT

ODAY

COM

(September 16, 2007),

http://www.usatoday.com/news/health/2007-09-16-flu-doctors_N.htm. See also paper presented at 42

NIC National

Immunization Conference—Mandatory Influenza Vaccination: The Virginia Mason Story, March 18, 2008, Atlanta,

Georgia available at http://cdc.confex.com/recording/cdc/nic2008/ppt/free/4db77adf5df9fff0d3caf5cafe28f496/

paper15824_5.ppt.

See, e.g., H.M. Babcock et al., Mandatory Vaccination of Healthcare Workers: Translating Policy to Practice, 50

LINICAL

NFECTIOUS

ISEASES

459-464 (2010) available at http://cid.oxfordjournals.org/content/50/4/459.full.

See e.g., Allie Malloy, Pregnant Nurse: I Was Fired for Refusing Flu Vaccine, CNNH

EALTH

COM

(December 29,

2013), http://www.cnn.com/2013/12/29/health/pregnant-nurse-flu-vaccine-refusal/; Sydney Lupkin, Eight Hospital

Employees Fired for Refusing Flu Vaccines, ABCNEWS.com (January 3, 2012), http://abcnews.go.com/Health/

indiana-hospital-fires-nurses-refusing-flu-shot/story?id=18116967.

Virginia Mason Hosp. v. Washington State Nurses Ass’n, 511 F.3d 908 (9

Cir. 2007).

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 7

nurses’ union.

In addition, an employee terminated by a children’s hospital for refusing to

receive an influenza vaccination brought suit alleging religious discrimination in violation of

Title VII of the Civil Rights Act.

The plaintiff’s views were rooted in “veganism,” but the

judge denied the defendant’s summary judgment motion because it was “plausible that

Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious

views.”

Elsewhere, a hospital employee discharged for refusing to take an influenza

vaccination filed a claim in South Carolina for unemployment benefits. An administrative

board found that the hospital’s failure to grant an exemption was unreasonable, but a South

Carolina state court of appeals vacated this decision. It explained that “a determination of

how to protect patients from life-threatening illnesses such as influenza is a complicated

medical and scientific evaluation that should be made by hospitals, not the Department of

Employment and Workforce, the ALC, or this court.”

In 2008, the Department of Defense (DOD) issued a policy directive requiring “all civilian health

care personnel who provide direct patient care in DOD military treatment facilities to be

immunized against seasonal influenza infection each year as a condition of employment, unless

there is a documented medical or religious reason not to be immunized.”

The Department of

Veterans Affairs has an influenza vaccination program for patients and employees of the Veterans

Health Administration that encourages, but does not mandate, yearly influenza vaccinations.

Vaccination Orders During a Public Health Emergency

Many states also have laws providing for mandatory vaccinations during a public health

emergency or outbreak of a communicable disease. Generally, the power to order such actions

rests with the governor of the state or with a state health officer. For example, a governor may

have the power to supplement the state’s existing compulsory vaccination programs and institute

additional programs in the event of a civil defense emergency period.

Or, a state health officer

may, upon declaration of a public health emergency, order an individual to be vaccinated “for

communicable diseases that have significant morbidity or mortality and present a severe danger

to public health.”

In addition, exemptions may be provided for medical reasons or where

Id. at 917.

Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., 1:11-CV-00917, 2012 WL 6721098 (S.D. Ohio December 27,

2012).

Id.

AnMed Health v. S. Carolina Dep't of Employment & Workforce, 404 S.C. 224, 229, 743 S.E.2d 854, 857 (S.C. Ct.

App. 2013). The Court did find, however, that the plaintiff’s reason for non-compliance was itself reasonable. Id.

Department of Defense/Joint Forces, HA Policy: 08-005, Policy for Mandatory Seasonal Influenza Immunization for

Civilian Health Care Personnel Who Provide Direct Patient Care in Department of Defense Military Treatment

Facilities (April 4, 2008) available at http://mhs.osd.mil/Content/docs/pdfs/policies/2008/08-005.pdf. See infra, “Role

of the Federal Government.” See also Assistant Secretary of Defense, Memorandum, Addition of Pandemic Influenza

Vaccine or Novel Vaccine to the Policy for Mandatory Seasonal Influenza Immunization for Civilian Health Care

Personnel who Provide Direct Patient Care in Department of Defense Military Treatment Facilities (July 28, 2011),

http://www.health.mil/~/media/MHS/Policy%20Files/Import/11-010.ashx.

See D

EPARTMENT OF

ETERANS

FFAIRS

VHA

EASON

NFLUENZA

ANUAL

(2013-2014) available at

http://www.publichealth.va.gov/docs/flu/va-flu-manual-2013-14.pdf .

TAT

. §128-8 (2014). In Arizona, the Governor, during a state of emergency or state of war emergency in

which there is an occurrence or the imminent threat of smallpox or other highly contagious and highly fatal disease,

may “issue orders that ... mandate treatment or vaccination of persons who are diagnosed with illness resulting from

exposure or who are reasonably believed to have been exposed or who may reasonably be expected to be exposed.”

RIZ

TAT

§36-787 (2014).

TAT

. §381.00315 (2014).

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 8

objections are based on religion or conscience.

However, if a person refuses to be vaccinated, he

or she may be quarantined during the public health emergency giving rise to the vaccination

order. State statutes may also provide additional authority to permit specified groups of persons to

be trained to administer vaccines during an emergency in the event insufficient health care

professionals are available for vaccine administration.

Model State Emergency Health Powers Act

In addition to the current laws, many states have considered the provisions set forth in the Model

State Emergency Health Powers Act (Model Act). The Model Act was drafted by The Center for

Law and the Public’s Health at Georgetown and Johns Hopkins Universities.

It seeks to “grant

public health powers to state and local public health authorities to ensure strong, effective, and

timely planning, prevention, and response mechanisms to public health emergencies (including

bioterrorism) while also respecting individual rights.”

It is important to note that this is intended

to be a model for states to use in evaluating their emergency response plans; passage of the Model

Act in its entirety is not required, so state legislatures may select the entire act, parts of it, or none

at all. Many states have used sections of the Model Act while tailoring their statutes and

regulations to respond to unique situations that may arise in their jurisdiction.

The Model State Emergency Health Powers Act addresses a number of issues likely to arise

during a public health emergency and offers guidelines for states with respect to what powers

may be necessary during such an emergency. With respect to vaccinations, the Model Act

includes provisions similar to the current laws discussed above. Under the Model Act, during a

public health emergency, the appropriate public health authority would be authorized to

“vaccinate persons as protection against infectious disease and to prevent the spread of

contagious or possibly contagious disease.”

The Model Act requires that the vaccine be

administered by a qualified person authorized by the public health authority, and that the vaccine

“not be such as is reasonably likely to lead to serious harm to the affected individual.”

The

Model Act recognizes that individuals may be unable or unwilling to undergo vaccination “for

reasons of health, religion, or conscience,” and provides that such individuals may be subject to

quarantine to prevent the spread of a contagious or possibly contagious disease.

State adoption

of the Model Act’s provisions has varied.

Some statutes delegate power to the state to require

See, e g., C

ONN

TAT

. §19a-222 (2014) (exemption for physician’s determination of sickness); V

ODE

§32.1-48 (2014) (vaccination waived if detrimental to person’s health, as certified by a physician); W

TAT

§252.041 (2014) (vaccination may be refused for reasons of religion or conscience). See generally W.E. Parmet,

Pandemic Vaccines - The Legal Landscape, 362 N.E.

. 1949-1952 (2010).

See Stephen Smith, State Takes Extra Steps to Battle Flu in the Fall, B

OSTON

COM

(August 13, 2009)

http://www.boston.com/news/health/articles/2009/08/13/state_asks_volunteers_to_aid_flu_vaccinations/.

See T

ENTERS FOR

THE

UBLIC

’

EALTH

OLLABORATIVE AT

OHNS

OPKINS AND

EORGETOWN

NIVERSITIES

ODEL

TATE

MERGENCY

EALTH

OWERS

(MSEHPA) (January 27, 2010),

http://www.publichealthlaw.net/ModelLaws/MSEHPA.php.

Id.

The Center for Law and the Public’s Health tracked state legislative activity relating to the Model Act through 2006.

See Id.

The M

ODEL

TATE

MERGENCY

EALTH

OWERS

, Article VI, Sec. 603 (December 21, 2001) available at

http://www.publichealthlaw.net/MSEHPA/MSEHPA.pdf.

Id.

Id. See Section 604 of the Model Act for provisions relating to quarantine.

See Ben Horowitz, A Shot in the Arm: What a Modern Approach to Jacobson v. Massachusetts Means for Mandatory

(continued...)

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 9

vaccinations in a public health emergency,

or to impose quarantine requirements.

In contrast,

other states provide that individuals may refuse vaccinations.

Role of the Federal Government

Federal jurisdiction over public health matters derives from the Commerce Clause, which states

that Congress shall have the power “[t]o regulate Commerce with foreign Nations, and among the

several States....”

Thus, under the Public Health Service Act, the Secretary of the Department of

Health and Human Services has authority to make and enforce regulations necessary “to prevent

the introduction, transmission, or spread of communicable diseases from foreign countries into

the States or possessions, or from one State or possession into any other State or possession.”

With regard to interstate commerce, the Public Health Service Act deals primarily with the use of

quarantine and isolation measures to halt the spread of certain communicable diseases.

mandatory vaccination programs are specifically authorized, nor do there appear to be any

regulations regarding the implementation of a mandatory vaccination program at the federal level

during a public health emergency.

With regard to foreign countries, the Secretary has the power to restrict the entry of groups of

aliens for public health reasons.

This power includes the authority to issue vaccination

requirements for immigrants seeking entry into the United States. Currently, certain vaccines

specified in statute, and other vaccines recommended by the CDC Advisory Committee on

Immunization Practices for the general U.S. population, are required for immigrants who seek

permanent residence in the United States, and people currently living in the United States who

seek to adjust their status to become permanent residents.

CDC has determined that two diseases

(...continued)

Vaccinations in a Public Health Emergency, 60 Am. U. L. Rev. 1715 (2011).

See Fla. Stat. Ann. 381.00315(1)(b)4.b (2014); Ariz. Rev. Stat. Ann. §36-787 (2014).

See Haw. Rev. Stat. §321-1 (2014); Ariz. Rev. Stat. Ann. §36-787 (2014).

See Minn. Stat. Ann. 12.39 (2014).

U.S.

ONST

Art. I, §8. Recognizing that vaccines occasionally cause adverse events, and to assure a supply of

vaccines while still providing a financial remedy to those injured, Congress passed the National Vaccine Injury

Compensation Act, which created the National Vaccine Injury Program. That program provides a no-fault

compensation plan, with capped damages for pain and suffering. 42 U.S.C. §§300aa-1–300aa-34.

42 U.S.C. §264(a). Originally, the statute conferred this authority on the Surgeon General; however, pursuant to

Reorganization Plan No. 3 of 1966, all statutory powers and functions of the Surgeon General were transferred to the

Secretary.

See 42 C.F.R. Parts 70 (interstate matters) & 71 (foreign arrivals).

It may be noted that Congress established a vaccine injury compensation program in the 1980’s which provides a no-

fault mechanism to resolve vaccine injury claims and provides partial immunity for vaccine manufacturers. See U.S.

Department of Health and Human Services, National Vaccine Injury Compensation Program (last visited May 21,

2014), http://www.hrsa.gov/vaccinecompensation/; CRS Report RL33927, Selected Federal Compensation Programs

for Physical Injury or Death, coordinated by Sarah A. Lister and C. Stephen Redhead. The Countermeasures Injury

Compensation Program provides compensation for use of countermeasures in an emergency. See U.S. Department of

Health and Human Services, Countermeasures Injury Compensation (last visited May 21, 2014), http://www.hrsa.gov/

cicp/; CRS Report RS22327, Pandemic Flu and Medical Biodefense Countermeasure Liability Limitation, by Edward

C. Liu.

See 8 U.S.C. §1182.

See the CDC Division of Global Migration and Quarantine website for information on vaccination requirements for

immigrants at http://www.cdc.gov/immigrantrefugeehealth/exams/medical-examination.html. For further information

(continued...)

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 10

for which vaccines are recommended for routine use by the ACIP—for human papillomavirus

(HPV) and zoster (shingles)—do not have the potential to cause outbreaks, and are therefore not

required for admission.

Vaccination requirements may be waived when the foreign national

receives the vaccination, if the civil surgeon or panel physician certifies that the vaccination

would not be medically appropriate, or if the vaccination would be contrary to the foreign

national’s religious or moral beliefs.

Likewise, the military has broad authority in dealing with its personnel, both military and civilian,

including the protection of their health.

Military regulations require American troops to be

immunized against a number of diseases, including tetanus, diphtheria, influenza, hepatitis A,

measles, mumps, rubella, polio, and yellow fever.

Inoculations begin upon entry into military

service, and later vaccines depend upon troop specialties or assignments to different geographic

areas of the world. Courts have upheld the legality of military mandatory vaccination orders. For

example, in United States v. Chadwell,

two U.S. Marines refused to be vaccinated against

smallpox, typhoid, paratyphoid, and influenza because of their religious beliefs.

In upholding

the convictions, the Navy Board of Review court (now the Navy-Marine Corps Court of Criminal

Appeals) stated that religious beliefs were not above military orders and that “to permit this

would be to make the professed doctrines of religious belief superior to military orders, and in

effect to permit every soldier to become a law unto himself.”

Federal courts do not appear to

contradict this reasoning. One district court, in reviewing a denial of a discharge decision of the

Commandant of the Marine Corps under an “arbitrary and capricious standard,” noted the

lawfulness of the military’s anthrax vaccination program, and noted military commanders’

“overriding responsibility to protect the health and safety of American military personnel by

administering appropriate vaccines when faced with the growing threat of biological and

(...continued)

about health-related grounds for exclusion of immigrants see CRS Report R40570, Immigration Policies and Issues on

Health-Related Grounds for Exclusion, by Ruth Ellen Wasem.

See CDC, “Criteria for Vaccination Requirements for U.S. Immigration Purposes,” 74 Federal Register 58634-58638

(November 13, 2009).

8 U.S.C. §1182(g)(2).

Congress’ war powers include the power to “raise and support Armies,” to “provide and maintain a Navy,” and to

“make Rules for the Government and Regulation of the land and naval Forces.” U.S.

ONST

Art. 1, §8, cls. 12-14. The

Supreme Court has called these powers “broad and sweeping,” United States v. O’Brian, 391 U.S. 367 (1967), and the

Court gives its highest level of deference to legislation made under Congress’ authority to raise and support armies and

make rules and regulations for their governance. See Rostker v. Goldberg, 453 U.S. 47 (1981).

See Department of Defense (DOD) Directive Number 6200.04, “Force Health Protection,” (2004); DOD Directive

Number 6205.02E, “Policy and Programs for Immunizations to Protect the Health of Service Members and Military

Beneficiaries,” (2006) available at http://www.dtic.mil/whs/directives/corres/dir.html. See also Army Regulation 40-

562, Immunizations and Chemoprophylaxis (September 29, 2006) available at http://www.vaccines.mil/documents/

969r40_562.pdf.

36 C.M.R. 741 (1965).

Id. at 748.

Id. Current Army regulations, supra, note *, Ch. 2, Para 2-6, permit two types of exemptions from immunization,

medical and administrative, under certain circumstances. A mandatory anthrax vaccination program for certain military

personnel, begun in 1998, has been the subject of various lawsuits brought by members of the military who argued the

vaccine was unproven and that studies describing its safety were unsound. In one case, Rempfer v. Von Eschenbach,

535 F. Supp. 2d 99 (D. D.C. 2008), the court held that the FDA had applied its expertise and found that the anthrax

vaccine in question was effective for immunization against anthrax. The court refused to substitute its own judgment

for that of the FDA. The court of appeals affirmed the district court ruling in Rempfer v. Sharfstein, 583 F. 3d 860

(D.C. Cir. 2009). See also Dep. of Defense, Anthrax Vaccine Immunization Program available at

http://www.vaccines.mil/default.aspx?cnt=resource/qaAll&dID=21&cID=350.

Mandatory Vaccinations: Precedent and Current Laws

Congressional Research Service 11

chemical weaponry.”

Likewise, the Court of Appeals for the District of Columbia Circuit upheld

a Department of Defense policy of using unapproved, investigational drugs on military members

in combat situations without their consent.

Finally, in two recent cases the plaintiffs were

discharged from the military for refusing to receive anthrax vaccinations. They brought claims

challenging the Secretary of the Air Force’s denial of their requests to correct the disciplinary

records on the matter from their files. In both cases, the District Court for the District of

Columbia ruled that the decision of the Board for the Correction of Military Records was not

arbitrary and capricious.

As noted above, state and local governments have primary responsibility for protecting the public

health, and this has been reflected in the enactment of various state laws requiring that school

children be vaccinated against certain diseases before enrolling in school and that health care

workers be vaccinated as a condition of employment, as well as laws providing for mandatory

vaccination procedures during a public health emergency. Any federal mandatory vaccination

program applicable to the general public would likely be limited to areas of existing federal

jurisdiction, i.e., interstate and foreign commerce, similar to the federal quarantine authority.

This limitation on federal jurisdiction acknowledges that states have the primary responsibility for

protecting the public health, but that under certain circumstances, federal intervention may be

necessary.

Author Contact Information

Jared P. Cole

Legislative Attorney

pcole@crs.loc.gov, 7-6350

Kathleen S. Swendiman

Legislative Attorney

kswendim[email protected]ov, 7-9105

O'Neil v. Sec'y of Navy, 76 F. Supp. 2d 641, 645 (W.D. Pa. 1999).

Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991).

See Bates v. Donley, 935 F. Supp. 2d 14, 23 (D.D.C. 2013); Martin v. Donley, 886 F. Supp. 2d 1, 13 (D.D.C. 2012).

It has been suggested that in the case of a serious outbreak of a communicable disease, the federal government might

enact policies to encourage vaccinations or place restrictions on those who refuse. B

UREAU OF

USTICE

SSISTANCE

U.S.

EPARTMENT OF

USTICE

OLE OF

NFORCEMENT IN

UBLIC

EALTH

MERGENCIES

19 (September 2006)

available at https://www.ncjrs.gov/pdffiles1/bja/214333.pdf.