by Lorraine Tan, 19 Apr 2022 Introduction The coronavirus continues to spread today due to low vaccination rates. Individuals who are unvaccinated against Covid are more likely to contract the virus, suffer life-threatening complications, and transmit the infection to others. In light of such public health concerns, should governments make Covid vaccines compulsory for its citizens? 1. Vaccine mandates: an analysis At its core, the vaccine mandate debate is a tradeoff between public welfare and individual rights. While the freedom of choice and bodily autonomy are crucial rights that should be respected by the law, they are not absolute. In public health crises like the current pandemic, moderate interventionist policies which override these rights may be justified to protect the health and safety interests of the wider population. In other words, the legitimacy of a vaccine mandate depends heavily on its scope of enforcement. Socio-economic considerations also have to be taken into account when implementing the mandates. Should religious exemptions be granted? How severe is vaccine hesitancy in the country? If workers who do not comply with the mandates are laid off, will there be mass unemployment and labour shortages? Are private companies already requiring their employees to get vaccinated? There are no standard answers to these questions because they have to be evaluated based on varying contexts in different jurisdictions. 2. Case study 1: the USA In 2021, the Biden administration ordered the Occupational Safety and Health Administration (OSHA) to enforce vaccine mandates among large businesses by requiring employees to either be vaccinated or tested weekly for Covid. They also mandated vaccines for healthcare workers at federal, publicly funded medical facilities. In January 2022, the Supreme Court blocked the president’s former order, but allowed the latter. In a 6-3 decision, the justices ruled that OSHA could not implement the mandates because they did not have the legal right to address matters outside workplace safety. This decision was made based on the argument that employees were exposed to Covid in their daily lives; it was not a risk that was mutually exclusive to, or heightened in most workplaces. The vaccine rule, which included all workplaces, was considered too broad. It was deemed a “significant encroachment on the lives of a vast number of employees”. The Court argued these concerns did not apply to the other mandate, which was more limited and targeted. Therefore, vaccine mandates that are proportionate in managing health risks are constitutional. This is further proven by the leading American precedent Jacobson v Massachusetts, which upheld a state’s compulsory smallpox vaccine programme over a pastor who claimed it violated his liberty. The judge stated that “the rights of the individual may be subjected to such restraint to be enforced by reasonable regulations as the safety of the general public may demand.” 3. Case study 2: the UK Previously, the British government amended the Health and Social Care Act 2008 to mandate vaccines for NHS and care home workers. However, in January 2022, the health secretary revealed that the mandate will be revoked in case of a successful consultation and parliamentary approval. The justifications given were that (1) many had already contracted Omicron, a milder variant which typically did not require hospitalisation and (2) the UK’s vaccination rate and vaccine confidence was relatively high in the world, rendering a mandate unnecessary. 4. Case study 3: Europe In 2022, the European Court of Human Rights in Strasbourg published a press release stating that it will not suspend such mandates for medical professionals in Greece. While the Court did not provide reasons for its decision, this implies that it did not consider vaccine mandates to be irreversibly harmful to individuals and their right to private life, which is protected by Article 8 of the European Convention on Human Rights. However, the litigation is still in its initial stages, and the Court may eventually find the case to be a violation of human rights. 5. Conclusion Vaccine mandates usually apply to a specific group of high risk stakeholders. Most vaccine mandates have largely been deemed legal amidst the Covid pandemic. But if the government oversteps its boundaries and attempts to enact disproportionately harsh vaccine policies, they may be struck down by the judiciary. Overall, it is up to governments to tread lightly in order to balance the interests of individual citizens as well as that of the wider community. 6. References https://theconversation.com/compulsory-vaccination-what-does-human-rights-law-say-167735 https://youtu.be/iyVrqtWbV3A https://law.stanford.edu/2022/01/20/a-look-at-the-supreme-court-ruling-on-vaccination-mandates https://www.instituteforgovernment.org.uk/explainers/vaccine-mandates https://www.bbc.co.uk/news/world-us-canada-59989476
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