Memorandum on Immunization Mandates

The Consortium thanks graduating law students Maryam Rangwala and Golzar Ansari for their work and dedication to this project.

Memorandum on Immunization Mandates

I. Mandatory Immunization in Schools

The history of case law which upholds mandatory vaccinations as a condition to attending school dates back to the early 20th century. In Jacobson v. Massachusetts, the Supreme Court held that “the police power of a State embraces such reasonable regulations...as will protect the public health and safety,” (197, U.S.11, 1905). The ruling was upheld in Zucht v. King et. al., where the Supreme Court reasserted that it is within the police power of state to have compulsory vaccination laws, and applied that insight to school immunization requirements. (43, S.Ct. 24, 1922). Ever since, every court, has upheld mandatory immunizations for schools. For example, in Brown v. Stone, the Supreme Court of Mississippi, held that a statute requiring immunization against certain crippling and deadly diseases before a child could be admitted to school, served a compelling state interest, (378 So. 2d 218, 1979). In 1944, in Prince v. Massachusetts, the Court added that parental rights are not absolute. The Court stated, “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children”.

Beginning in 1971, courts examined religious exemptions from mandatory vaccination for those with sincerely held religious beliefs. In Dalli v. Board of Education, the court held that religious exemptions were allowed if there was no outbreak, and that restricting religious exemptions to “tenets and practice of a recognized church or religious denomination” was a violation of the Equal Protection Clause, (358 Mass. 753, 1971). In Sherr v. Northport-East Northport Union Free School District, the court held that only parents whose opposition to vaccines was based on sincerely held religious beliefs were entitled to exemption. However, the court also modified this by ruling that limiting religious exemptions to “bonafide members of a recognized religious organization” violated the First Amendment. The court argued that “there is no compelling societal interest that might justify the burden placed upon the free religious exercise of certain individuals while others remain free to avoid subjecting their children to a religiously objectionable medical technique merely because they may belong to a particular religious organization to which the state has given a stamp of approval,” (672 F.Supp. 81, 1987). This was reiterated in McCarthy v. Boozman, where the court struck down an Arkansas state law which granted a denominational preference for religious exemptions on the grounds that it was unconstitutional unless it served a compelling state interest, (212 F.Supp.2d 945, 2002).

However, what constituted a sincerely held religious belief was debated. In Mason v. General Brown Central School District, the parents tried to obtain a religious exemption by arguing that they lived in a “natural order” and that interference with natural physical and neurological process diminished the physical and mental capacity and that this rises to the level of a sincerely held religious belief as advocated by the Universal Life Church (851 F.2d 47). However, the court denied their exemption arguing that this rises to scientific or philosophical belief, rather than a religious belief. Essentially, the court held that lifestyle choices do not rise to the level of religion. On the other hand, in Lewis v. Sobol, the parents obtained a religious exemption for their daughter. In this case, the parents’ religious belief did not oppose vaccination per se, but held that medicine should only be used when physical symptoms exist that manifest an unbalanced spirit, (710 F.Supp. 506, 1989). The court held that their developed views of a creator and individual spiritual perfection are fairly categorized as religion.

Many parents have also been concerned with the constitutionality of excluding children from school on the basis of non-vaccination. In Phillips v. City of New York, the parents argued that state regulation excluding their unvaccinated child from attending schools is unconstitutional, (775, F.3d 538). However, the court stated that it is within the “permissible exercise of the State’s police power”, thus rendering mandates constitutional. This is similar to the holding discussed in Brown, where the court held that protecting children at school against crippling and deadly diseases served a compelling state interest and that the interest of school children prevailed against the religious beliefs of their parents.

II. Mandatory Immunization in the Workplace

The influenza vaccine, mandated for all employees in many hospitals, has generated some resistance from employees who seek personal or religious exemptions from this requirement. The federal courts have varied in their response to these complaints. On the one hand, under federal law - Title VII of the Civil Rights Act of 1964 - employers are required “to provide reasonable accommodations for sincerely held employee religious beliefs, even if some of those beliefs are idiosyncratic.” Contrastingly, however, the public health and safety rationale that hospitals use to justify vaccine mandates are often upheld, unless the plaintiff can show a policy of discrimination.

Recently, in 2016, two cases were filed by the EEOC challenging the influenza mandate in separate hospitals; judgments in these cases have yet to be issued. In EEOC v. Baystate Medical Center, Inc., the Massachusetts District Court considered whether the unpaid leave and termination of an employee, because she sought a religious accommodation from the hospital’s mandatory influenza immunization policy, is discriminatory. The EEOC argues that the hospital’s policy violates federal anti-bias laws, while the hospital argues that the employee was terminated because she refused to wear a face mask, a common requirement for employees, who work directly with patients and are not vaccinated. Similarly, in EEOC v. Mission Hospital, the U.S. District Court for the Western District of North Carolina considered whether the hospital violated federal law when it failed to accommodate employees’ religious beliefs and whether the hospital terminated plaintiff’s employment because of their religious beliefs. The EEOC argues that “three former employees were denied religious exemptions because they submitted their requests after an arbitrary deadline [imposed by the hospital] that does not protect the employer from its obligation to provide a religious accommodation.”

The court has affirmed summary judgment for the hospital in the interest of protecting public health and safety. For example, in Robinson v. Children’s Hospital Boston, the District Court of Massachusetts granted the Hospital’s motion for summary judgment because the hospital had, according to the statute at issue, reasonably accommodated the plaintiff prior to terminating her employment. The court’s holding stated that “any accommodation would have been an undue hardship” and “no reasonable jury could find that plaintiff had a bona fide religious belief that precluded vaccination” casting doubt upon the merits of plaintiff’s argument. Similarly, in Seiu v. Los Robles Regional Medical Center, the Court declined to grant plaintiff-union an injunction denying hospital-defendant from implementing a stricter vaccine policy because the public health rationale outweighed the stigma that employees who were not vaccinated may face by wearing different badges and masks that made their unvaccinated status clear to the public and other hospital staff.

Contrastingly, the Court grants plaintiff relief if plaintiff can prove the hospital’s policy regarding vaccines was discriminatory. For example, in EEOC v. Saint Vincent Health Center, the U.S. District Court for the Western District of Pennsylvania, upheld a settlement agreement between the parties where the hospital agreed to pay $300k to each plaintiff-employee because the hospital’s policy was held to be discriminatory against employees seeking religious exemptions; notably, the hospital granted fourteen medical exemptions to employees, but unilaterally denied all applications for religious exemptions.

III. Insights from the Jurisprudence surrounding Immunization Mandates in the States

After the Dalli ruling that states cannot limit religions to “tenets and practice of a recognized church or religious denomination”, other states started to rule on religious exemptions as well. In 1979, in Brown v. Stone, the Supreme Court of Mississippi held that a state statute requiring immunization of children against crippling and deadly diseases before attending school, served a compelling public interest, that the statute was a reasonable exercise of police power, and the holding removed religious exemptions completely, (378 So.2d 218, 1979). On the other hand, in 2007, Diana H. v. Rubin, the Arizona Court of Appeals held that the Department of Economic Security failed to articulate a compelling reason to vaccinate a dependent nine-month old baby taken out of her home against the mother’s religious objections and that parents have a right to the religious upbringing of their child, [171 P.3d 200 (Ariz. Ct. App., 2007)].

However, in 2014, the court in Arlene L. v. Dept of Child Safety, did authorize vaccination of a child over the mother’s opposition, based on her personal and religious beliefs. In this particular case, the child was not a dependent of the mother, but in foster care and when the state assumed legal custody of a dependent child, it assumes “the responsibility to provide the child with adequate food, clothing, shelter, education, and medical care.” The court ruled that it did have a compelling interest in vaccinating the child as it would have a broad public impact beyond the case. This holding was also applied to the case of In re Zs in Maine in 2015, where the child was in state custody as well, (121 A.3d 1286, 2015). In all these cases, mandates were not seen to justify not vaccinating a child in the state’s care.

Similarly, the state’s interest in protecting the health and welfare of its citizens can also outweigh religious exemptions in some cases. For example, in Douglas County v. Anaya, the Supreme Court of Nebraska held that the state’s interest in the health and welfare of children born in the state satisfied the rational basis test and outweighed the parents’ religious objections to screening infants for metabolic diseases. In Calandra v. State College Area School District, the Commonwealth Court of Pennsylvania held that the school’s policy to require a tetanus immunization for all students seeking to participate in interscholastic sports did not place an impermissible burden upon students who were opposed to vaccines due to their religious beliefs. The court reasoned that participation in interscholastic sports was discretionary and the state could regulate the health of the student-players by requiring vaccinations.

In New York, child-students may seek religious exemptions from mandatory vaccinations without their parents. In Bowden v. Iona Grammar School, the New York State Supreme Court held that a religious exemption applied to private and parochial schools and a child-student could assert proceedings against her school to enforce a religious exemption. The court reasoned that the first amendment protects the child’s exercise of a religious exemption and issued a preliminary injunction for the child. In Maier v. School District, the New York Supreme Court held that a child can seek an exemption from immunization requirements if the parent has a genuine and sincere religious belief which she actively practices that are substantially similar to the tenets of the Christian Scientist faith. The Court agreed with the father’s argument that it was unconstitutional to force his family to join an organized religious body in order to practice their religious beliefs without government overreach.

States can require a show that a religious belief is sincere, but they need to do so in law. For example, in New York, the law require sincerity, and extensive jurisprudence focuses on whether beliefs are sincere or not. In Brown v. City School District of the City of Corning, the New York Court held that plaintiff had sincere religious beliefs because he could show that, for the past several years, members of his family were not given a vaccination. In McCartney v. Austin, the New York State Court held that religious exemption was properly denied because the parents seeking an exemption were doing so based on personal beliefs, not for a religious proscription by the Roman Catholic Church. However, absent statutory mandate, officials cannot examine sincerity - for example, in LePage v. Department of Health, the Supreme Court of Wyoming held that the State Department of Health exceeded its statutory authority by inquiring into sincerity of mother’s religious beliefs when she was seeking a religious exemption for her child. The court ruled in favor of the parent because the Department of Health could not prove that they received a high number of applications from individuals seeking religious exemptions insincerely, and hence, did not have a compelling reason to go beyond its explicit statutory authority.

In one unusual case, a court addressing a hospital influenza mandate extended religious exemptions to cover personal beliefs. In Valent v. Department of Labor, the Superior Court of New Jersey held that employer’s flu vaccination policy violated claimant’s freedom of expression because the policy only permitted employees with religious exemptions to refuse vaccinations, but it did not permit employees to refuse vaccinations for non-religious reasons. This decision was unusual, and likely not representative.

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