Expert quotes

January 19, 2021

UW health law expert: COVID-19 vaccine rollout presents ethical, logistical questions

 

The distribution of the first federally approved COVID-19 vaccine around the country is a major step toward fighting the disease — and a massive public health undertaking.

And while the immediate focus is on how, where and to whom to provide the first doses, other legal issues likely will emerge, says University of Washington law professor Pat Kuszler, director of the university’s graduate program in health law and an M.D. with a background in emergency medicine.

In the coming months, questions are expected to surface about privacy, requirements for employment and school attendance and whether people can claim exemptions.

When it comes to whether employers can mandate vaccines, Kuszler sees an existing parallel.

“Private employers can require their employees to get the vaccine,” she said. “This is much akin to drug testing, where private employers often require drug testing. The key here is that employees can choose not to work for these enterprises if they are unwilling to submit to the drug test or vaccination.”

 

Additional comments from Kuszler:

On whether employers can require vaccines:

“Naturally, there may be exceptions for those who cannot take the vaccine, such as those with medical conditions for whom the vaccine could cause health problems. In the case of a labor agreement, there may need to be negotiation with a union to impose this requirement, but of course, the likelihood of a union opposing this in the midst of a pandemic would not be as great as compared to other employer-imposed requirements.

Similarly, private vendors, like airlines, can require vaccinations for those who are going to use their services. We have seen this recently with airlines flying to Hawaii. However, they are not required to do so. Stores, coffee shops and other private vendors are in a poor position to require their customers to be vaccinated, although they can require masks and social distancing.

Public employers, notably the federal and state government, are more limited in that they are constrained by the Constitution in terms of forcing an individual to be vaccinated and limiting individual liberty. But federal and state governments can require vaccinations for those who are using or accessing their properties, such as court houses, federal and state offices, etc. This includes public schools and universities. This would likely require some government action — legislative or executive order.

In prisons and the military, vaccinations can be required — both prisoners and soldiers have a diminished expectation of privacy and are under the ‘care’ of government.”

 

On ethical considerations of a vaccine distribution plan:

“Government, in the case of a pandemic like this, can set up priorities in terms of access. This is probably not “law” but is couched as recommendations. We see this in the current COVID pandemic with the recommendations that front-line health care workers and elderly be vaccinated first. These recommendations are likely to be generally adhered to by states and health care entities distributing the vaccine. However, there are unethical exceptions, some of which have cropped up in terms of testing, such as sports teams and celebrities having preferential access on the basis of wealth and fame. This is very discouraging in terms of distributive justice.”

 

On the possible use of exemptions with the COVID vaccine:

“In terms of exemptions, there are basically three classes:  medical, religious and philosophical.

Medical exemptions are usually not controversial. Some people, including some who may be immunocompromised, pregnant or medically fragile may be more at risk for adverse reactions to vaccine. Generally a physician would attest to this exemption. This is the common requirement in most states.

Religious exemptions are more complex and variable, state to state. In most states, the patient simply has to state that their religion opposes vaccination. Some states require some submission of evidence that this is religious dogma. At present, religion is being privileged far more than in the past. Several big cases have carved out exceptions for religion in terms of compliance to civil rights and employment laws. I would expect that the religious exemption to vaccines will be given more credence than in the past.

Philosophical exemptions are the most liberal “wild card” in terms of vaccine exemptions and are generally pretty loose: The patient simply has to assert them. However, there has been a partial roll-back of these recently as rates of pertussis (whooping cough) and measles have increased. These infectious diseases had largely been tamped down by vaccination over the last half-century but recurred as herd immunity was lost. In Washington, the Legislature narrowed the philosophical exemption a few years ago by requiring those who seek the exemption to have been counseled by their physician. In 2019, Washington removed the philosophical exemption completely with respect to mandatory measles vaccinations.”

For more information, contact Kuszler at kuszler@uw.edu.

 

Tag(s): COVID-19 • Patricia Kuszler • School of Law • School of Medicine • School of Public Health

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