As COVID vaccines head toward full FDA approval, many are debating the pros and cons of mandatory vaccination policies at work or in public accommodations. There has been substantial analysis about whether individuals who object to mandates could sue, particularly for disability rights violations. Yet the disability community organized around getting the vaccine to people with disabilities as fast as possible. The Centers for Disease Control (CDC) says vaccines are safe for most people with underlying conditions.
I find myself wondering if civil rights lawyers are asking the right question in asking if ADA rights prohibit vaccine mandates. What about the flipside: Could the rights of disabled workers, patients, students, or customers favor vaccination policies?
Breakthrough Cases and Collective Responsibility
The issue is not academic. As of June 1, 2021, the CDC reports more than 3,000 “breakthrough cases,” where someone who is fully vaccinated gets COVID. This is likely an undercount. Of course, it is also a very tiny fraction of the more than 35 million vaccinated. A few fully vaccinated people have died—mostly disabled people and older adults.
The fact that breakthrough cases are rare demonstrates that the vaccines work. The fact that people who are fully vaccinated can still die—especially disabled people with underlying conditions—suggests to me that the way our legal systems often analyzes disability rights doesn’t work here. We need community and collective rights and responsibilities, not just individual rights.
As one doctor explained in an NBC Bay Area report: “Senior Citizens and those with weaker immune systems from underlying medical problems, may not develop as strong an immune response to a vaccine. So, this really points to the importance of increasing immunization rates in the community….”
Encouragement or Mandate?
There seems to be an emerging consensus that encouragement, but not outright mandate, is the best path. Guidance from the Equal Employment Opportunity Commission (EEOC) and the CDC suggests employers consider encouraging, but not mandating, vaccines. Some of this reasoning is based on the Emergency Use Authorization status of the vaccines.
Another argument against mandates is the valid point that some people, including communities of color, have historically grounded concerns about public health initiatives, which deserve respect. We need to zoom out the lens beyond individual objections on both sides.
The legal argument against mandates is not as one-sided as much of the discussion suggests. In a prescient 2017 law review article, Professor Teri Dobbins Baxter argues that employers might indeed face liability during a pandemic for not mandating vaccines. Baxter notes such potential sources of liability as state tort negligence law and OSHA requirements. Employees are also entitled to workers compensation for diseases they catch as a result of being at work.
Could Immunization Policies Be Reasonable Accommodations?
Baxter could perhaps also have considered the ADA and other disability laws, which require both employers and places of public accommodation to have policies that provide people with disabilities with reasonable accommodations and opportunities.
Underlying conditions make COVID more deadly and some immunodeficiencies may make vaccines less effective to protect disabled people. And those conditions often disproportionally affect populations of color, so laws banning policies with a racially disparate impact are also in play.
Pre-COVID, healthcare and education employers sometimes mandated vaccines, and there were legal challenges, which were often unsuccessful. In a recent case that is fairly typical, a patient-facing technician argued that mandating the flu vaccine put a disparate impact on pregnant women because of insufficient information about vaccine interactions with pregnancy, and that it constituted disability discrimination under state law. The Court disagreed, noting CDC guidance in its analysis. There have only been a handful of successful challenges to mandatory vaccine policies (notably one where a union challenged a policy based on the failure to follow collective bargaining procedures).
Yet risk of prolonged and expensive legal fights seems to mean people see the ADA as making vaccine mandates risky—not that it could have the opposite effect. To be sure, I’m not aware of any cases challenging the lack of a mandatory vaccination policy, but one could perhaps draw an analogy to cases where an employee or student asked for rules to make the environment safe for them, such as a scent-free policy.
The ADA does more than mandate exceptions for individuals. It requires policies and procedures that give access to people with disabilities. We should keep that in mind as we weigh legal rights and responsibilities.
 Teri Dobbins Baxter, Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks, 2017 Utah L. Rev. 885.
 LaBarbera v. NYU Winthrop Hosp., No. 218CV6737, 2021 WL 980873, at *20-21 (E.D.N.Y. Mar. 16, 2021), appeal filed Mar 30, 2021 (No. 21-815).
 Virginia Mason Hosp. v. Washington State Nurses Ass’n, 511 F.3d 908 (9th Cir. 2007).
 See, e.g, McBride v. City of Detroit, No. 07-12794, 2007 WL 4201134, at *4 (E.D. Mich. Nov. 28, 2007) (request for scent-free policy may be reasonable accommodation, depending on facts).