Summary

With the distribution of the COVID-19 vaccine underway, ensuring equitable and rapid distribution to the U.S. population will be important for mitigating the disproportionate impacts of the pandemic for people of color, preventing widening racial health disparities going forward, and achieving broad population immunity. Reflecting underlying inequities, the COVID-19 pandemic has disproportionately affected American Indian and Alaskan Native (AIAN) people who account for over 5 million people in the U.S. At the same time, vaccination rates among AIAN people have been higher than average to date. This brief presents available data on COVID-19 vaccinations among AIAN people from federal and state sources and discusses factors contributing to success in these vaccination efforts. It finds:

Underlying inequities that existed prior to the pandemic contribute to AIAN people facing increased barriers to accessing health care and being disproportionately affected by the COVID-19 pandemic. Chronic underfunding of the Indian Health Service (IHS) relative to health needs and high uninsured rates contribute to barriers to health care among AIAN people. Existing social, economic, and health inequities have also led to higher rates of illness and death among AIAN people due to COVID-19.

Data available to date show that AIAN people are being vaccinated at a higher rate compared to other racial/ethnic groups. Federal data show that 32% of AIAN people had received at least one dose of a COVID-19 vaccine, compared to 19% of White people, 16% of Asian people, 12% of Black people and 9% Hispanic people of as of April 5, 2021.State data similarly find higher vaccination rates among AIAN people compared to other groups.

The high vaccination rate among AIAN people largely reflects Tribal leadership in implementing vaccine prioritization and distribution strategies that meet the preferences and needs of their communities. The high rates may also, in part, reflect the greater supply of vaccine doses delivered to the IHS relative to the number of people served compared to state vaccination programs. Tribes have supported and built on existing trusted community resources and providers to distribute vaccines. The success Tribes have achieved in vaccinating their communities provide lessons learned that may help inform broader vaccination efforts going forward.

Background: Health and Health Care for AIAN People

Under treaties and laws, the federal government has a unique responsibility to provide health care services to AIAN people. The IHS is the primary vehicle through which the federal government fulfills this responsibility for members of federally recognized tribes, who make up approximately 2.6 million of the over 5 million individuals who self-identify as AIAN nationwide. The IHS provides services directly, through Tribally operated health programs, and through services purchased from private providers. The IHS also funds Urban Indian Organizations to make health care services accessible to people who reside in urban areas, who include most of the AIAN population.

Due to longstanding limitations and underfunding of the IHS, AIAN people face disproportionate barriers to accessing health care. IHS services generally are limited to members of or descendants of members of federally recognized Tribes, and not all individuals who self-identify as AIAN belong to one of these Tribes. IHS historically has been underfunded to meet the health care needs of AIAN people, and access to services through IHS often varies across locations. Given the limitations of IHS, Medicaid and other sources of health insurance remain important for expanding access to care for AIAN people. However, as of 2019, 22% of AIAN nonelderly people were uninsured, the highest of all racial and ethnic groups (Figure 1).

The COVID-19 pandemic has disproportionately affected AIAN people. AIAN people face increased risk of exposure to the virus to due underlying social and economic factors and have higher high rates of health conditions that put them at increased risk for serious illness if they contract coronavirus. Reflecting these increased risks, AIAN people are nearly twice as likely to be infected with the virus, nearly four times likely to be hospitalized, and nearly two and half times as likely to die due to COVID-19 as their White counterparts, based on age-adjusted data (Figure 2).

COVID-19 Vaccination among AIAN People

The federal government is allocating COVID-19 vaccines directly to the IHS, and Tribal health programs and Urban Indian Organizations choose whether to receive vaccines directly from the IHS or through their respective state distribution mechanisms. As of March 15, 2021, 351 of the 609 IHS facilities, Tribal health programs, and Urban Indian Organization facilities had elected to receive vaccines directly through IHS; facilities can change their election. When Tribal health programs and Urban Indian Organizations elect to receive vaccines through the state, the CDC provides the state a “sovereign nation supplement” of vaccine doses. CDC data shows that as of April 5, 2021, nearly 1.5 million vaccine doses had been delivered to IHS, over 1 million doses had been administered via IHS, and more than 630,000 people had received at least one dose through IHS, making up over 30% of the population served by IHS.

Data available to date suggest that AIAN people are being vaccinated at a higher rate compared to other racial/ethnic groups. Data gaps limit the ability to have a complete picture of who is being vaccinated and how vaccination rates vary across groups. However, data available to date show that AIAN people are being vaccinated at a higher rate relative to other racial/ethnic groups. For example, federal data from CDC, which were available for about half of people who have received at least one dose as of April 5, 2021, suggest that over 720,000 AIAN people had received at least one COVID-19 vaccine dose, making up over 30 percent of the 2.2 million people who self-identify solely as AIAN (Figure 3). In contrast, these data show 19% of White people, 16% of Asian people, 12% of Black people, and 9% of Hispanic people had received at least one vaccine dose.

State-level data on vaccinations among AIAN people is limited. Only 36 states were reporting vaccinations among AIAN people as of March 29, 2021. Moreover, the state-reported data does not reflect vaccines administered through allocations received through IHS, and, as such, may understate vaccination rates and further limit the ability to calculate reliable estimates. However, data from several states show that AIAN people are being vaccinated at higher rates compared to other groups. For example, in Alaska, 22% of vaccinations have gone to AIAN people while they account for 15% of the population. The pattern is similar at the county-level. As of April 5, 2021, counties with high shares of AIAN people had a higher average vaccination rate (20%) when compared to the average across counties and counties with low shares of AIAN people (19% and 18%, respectively).¹ 

Factors Contributing to High AIAN Vaccination Rates

The high vaccination rate among AIAN people stands in stark contrast to the gaps in vaccinations for Black and Hispanic people observed to date. The underlying inequities and barriers to health care facing AIAN people similarly could have led to barriers to vaccination. However, experiences suggest that the autonomy provided to Tribes to design and implement vaccine distribution efforts among their communities has contributed to success in vaccinating the population. The high rates may also, in part, reflect the greater supply of vaccine doses delivered to the IHS relative to the population served compared to state vaccination programs. As of April 5, 2021, over 1.5 million doses had been delivered to IHS, which represents roughly nearly 75,000 per 100,000 people served by the IHS. Only 2 states and Washington DC had higher rates of doses delivered than the IHS, although the IHS rate of doses administered is lower compared to these states. Additionally, the availability of more complete race/ethnicity data for AIAN people receiving the vaccine, since many are receiving it through IHS, Tribal health, and Urban Indian Organization facilities, may also be contributing to the high rates. Federal and some state data have high shares of vaccinations with unknown or “other” race/ethnicity, which may affect vaccination rates across racial/ethnic groups.

IHS, Tribal health programs, and Urban Indian Organizations have autonomy and flexibility to implement priority and distribution strategies that meet the needs and preferences of their communities. The IHS developed a COVID-19 Vaccine Task Force (VTF) to advance plans for prioritization strategies, vaccine administration, distribution, data management, safety and monitoring, and communications. Consistent with the federal recommendations from the Advisory Committee on Immunization Policies (ACIP), IHS first prioritized health care workers and residents of long-term care facilities. Initial doses allocated to IHS were estimated to be sufficient for 100% of its health care workforce and residents of long-term care facilities. Like states, Tribes and Urban Indian Organizations have authority to make their own prioritization decisions. Many chose to prioritize elders and some, like the Standing Rock Sioux Tribe, prioritized speakers of native languages, to protect against further losses of culture and traditions that the pandemic has threatened. Several Tribes, including Chickasaw Nation, Cherokee Nation, and Lummi Nation, have already had so much success in vaccinating their priority groups that they have expanded distribution to include non-Native members of the public.

Tribes are building on and supporting existing trusted community resources and providers to distribute vaccines. Tribes are utilizing the networks and resources in the community and drawing upon years of experience to reach tribal members with various access barriers. For example, the Navajo Nation has vaccinated between 4,000 and 5,000 homebound citizens by collaborating with public health workers to reach those residents in rural communities. In Alaska, tribal health organizations relied on longstanding strategies developed to reach geographically isolated communities, including partnering with local pilots to transport pharmacists and vials of vaccines to such areas. In addition, many Tribes have established vaccine sign-up systems that match the resources and preferences of their populations. For example, media reports suggested that many Tribes have set up call centers to answer inquiries, book appointments, and reach out to people.

Tribes have launched tailored outreach and communication plans that share culturally relevant messages through trusted individuals in the community. A national survey of AIAN people conducted in late 2020 found that the majority were willing receive a COVID-19 vaccine and that the most commonly held motivation for getting a vaccine was a sense of responsibility to protect the Native community and preserve cultural ways. Regardless of willingness to get a vaccine, the most frequently reported concern about the vaccine was how fast the vaccine moved through clinical trials. Some Tribes have utilized fluent language speakers to address concerns about the vaccine among the community. For example, the Cherokee Nation prioritized Cherokee language speakers to create optimism and show that the vaccine was safe. Similarly, the Navajo Nation employed fluent doctors and health care professionals to serve as trusted sources of information on the vaccine.

Looking Ahead

Given the disparate impacts of COVID-19 on AIAN people and the barriers and challenges they face to accessing health care, ensuring access to the COVID-19 vaccine is particularly important. Data available to date show a high COVID-19 vaccination rate among AIAN people, largely reflecting the role of Tribes in designing and implementing vaccine distribution strategies that meet the needs and preferences of the communities they serve. The success Tribes have achieved in vaccinating their communities provide lessons learned that may help inform broader vaccination efforts going forward. The American Rescue Plan Act of 2021 provides IHS with an additional $600 million for vaccine efforts, $1.5 billion to trace COVID-19 infections, $240 million to establish and sustain a COVID-19 public health workforce, and $600 million for COVID-19 related facility improvements, which may further enhance Tribal vaccination efforts and their response to COVID-19.

1. KFF analysis of Centers for Disease Control and Prevention’s (CDC) COVID-19 Integrated County View data. Counties in which the share of AIAN people is above the national average of 0.7% were classified as counties with high shares of AIAN people. Of the 2,350 reporting counties, 617 fall into the high share of AIAN people category (26% of the counties). ↩︎

More than half (54%) of rural adults say they have already gotten at least one dose of a COVID-19 vaccine or will do so as soon as possible, as rural residents report less issues with both supply and access than those living in urban and suburban areas, according to a new KFF COVID-19 Vaccine Monitor report focused on rural America.

A somewhat larger share of rural residents (39%) than those living in urban (31%) or suburban (31%) areas say they have already received at least one dose of a COVID-19 vaccine.

However, there is a larger share of rural residents (21%) than urban (10%) or suburban (13%) ones saying they will “definitely not” get a COVID-19 vaccine, a gap largely explained by the concentration of Republicans and White Evangelical Christians who live there.

Among rural residents who say they will “definitely not” get vaccinated, nearly three quarters (73%) identify as Republican or Republican-leaning, and 4 in 10 (41%) identify as White Evangelical Christians.

“There’s nothing inherently unique about living in a rural area that makes people balk at getting vaccinated,” KFF President and CEO Drew Altman said. “It’s just that rural areas have a larger share of people in the most vaccine-resistant groups: Republicans and White Evangelical Christians.”

The new report examines in depth the vaccine-related views and experiences of a nationally representative sample of rural residents. Earlier Vaccine Monitor reports showed concerns about vaccine uptake among this group, which represents about a fifth of the nation’s population and has often reported difficulty accessing health care.

Among rural residents who have not received a COVID-19 vaccine, few (11%) say they have tried to get an appointment – half the share of those living in urban (21%) and suburban (22%) areas.

The large share of rural residents who say they will “definitely not” get vaccinated, and the relatively small shares who have tried to get an appointment or who hope to get vaccinated “as soon as possible” suggest the potential for vaccination rates in rural America to eventually lag behind those in urban and suburban areas.

Rural residents are more likely to say that their area has enough COVID-19 vaccine to serve their communities (58%) than residents of urban or suburban communities are (46% each). In addition, two thirds (68%) of rural residents say there are enough locations to get vaccinated, compared to just over half of urban (52%) and suburban (55%) residents.

Importantly, fewer Black rural residents (53%) than White (69%) or Hispanic (67%) rural residents say there are adequate vaccination locations in their communities. In addition, half of Black (47%) and Hispanic (52%) residents, compared to 6 in 10 White adults (59%), say there is an adequate supply of vaccine.

“Contrary to conventional wisdom, most rural residents have embraced the COVID-19 vaccine, with over half saying they’ve gotten it already or want to get it as soon as they can,” KFF Executive Vice President Mollyann Brodie said. “Most people in rural areas believe their communities have enough vaccine and places to get vaccinated, though fewer Black residents do, suggesting a gap in access.”

The report also captures the impact of a variety of potential incentives, messages, and pieces of information on vaccination uptake.

Similar to the general public, various incentives and messages are most effective in moving rural residents in the “wait and see” and “only if required” groups. For example, at least half of those in the “wait and see” group say hearing that the vaccines are nearly 100% effective at preventing hospitalization and death from COVID-19 (64%) or that scientists have been working on the technology used in the new COVID-19 vaccines for 20 years (52%) will make them more likely to get vaccinated.

Across the board, none of the messages or pieces of information were effective at moving those who say they will definitely not get vaccinated.

Other highlights include:

• Half of adults in rural areas (49%) who have received at least one dose of a COVID-19 vaccine say it took them less than 15 minutes to get to the vaccination site, similar to the share of urban and suburban residents who say so.
• Rural residents (40%) are less likely to say they are worried about themselves or their family members getting sick from coronavirus than urban (54%) and suburban residents (49%) are, and are more likely to believe the news has “generally exaggerated” the seriousness of the coronavirus pandemic (44%) than urban (27%) and suburban (33%) residents are.
• More (58%) rural residents view getting vaccinated as a personal choice rather than part of everyone’s responsibility to protect the health of others (42%). The reverse is true among urban residents, while suburban residents are more evenly divided.

Designed and analyzed by public opinion researchers at KFF, the KFF Vaccine Monitor: Rural America was conducted from March 15-29 among a nationally representative random digit dial telephone sample of 1,001 adults living in rural America, the margin of sampling error is plus or minus 4 percentage points. For results based on subgroups, the margin of sampling error may be higher. All comparisons to urban and suburban residents are from the KFF March Vaccine Monitor. The KFF COVID-19 Vaccine Monitor is an ongoing research project tracking the public’s attitudes and experiences with COVID-19 vaccinations. Using a combination of surveys and qualitative research, this project tracks the dynamic nature of public opinion as vaccine development and distribution unfold, including vaccine confidence and hesitancy, trusted messengers and messages, as well as the public’s experiences with vaccination.

A new issue brief reviews excess death rates in the U.S. and peer countries by age groups to examine how the pandemic has affected excess mortality rate among younger people. The analysis looks specifically at the excess deaths that arose in 2020 to examine how the age at death during the pandemic has differed between the U.S. and peer nations, and estimates the excess potential years of life lost (a measure of “premature excess death”) during the pandemic. The brief also explores racial disparities in the age of death in the U.S.The analysis is available on the Peterson-KFF Health System Tracker, an online information hub dedicated to monitoring and assessing the performance of the U.S. health system.

A new KFF issue brief examines 2020 data on excess mortality – the number of deaths above what is expected in a typical year – and finds that among similarly large and wealthy nations, the United States had the highest premature excess mortality rate in 2020, indicating that younger people in the U.S. were more likely to have died due to the pandemic than younger people in other countries.

The excess mortality rate among Americans ages 15-64 was 58 per 100,000 people in the age group in 2020 – more than double that of the next closest peer nation, the United Kingdom (25 per 100,000).  Nearly half (48%) of excess deaths in the U.S. were among people younger than 75, compared to 18% for Belgium, a country with a comparable overall excess mortality rate.

The brief also estimates excess potential years of life lost (“premature excess deaths”) in the U.S. and peer nations. Excess potential years of life lost (up to age 75) is a measure of excess mortality and is used to compare differences in disease burden and longevity across countries. The analysis finds that the U.S. had 1,171 excess potential years of life lost up to age 75 per 100,000 people ages 0-74, which is over twice the rate of premature excess mortality in the next closest country, the U.K. (488 per 100,000 people). This approach, which follows OECD methods, may understate premature excess mortality in 2020, as excess deaths over age of 75 in 2020 were also premature compared to a typical year.

In comparison to a typical year, the U.S. lost an additional 3.6 million potential years of life in 2020. The high premature excess death rate in the U.S. was driven in part by racial disparities. American Indian and Alaska Native, Black, Native Hawaiian and Other Pacific Islander, and Hispanic people had over 3 times the premature excess death rate in the U.S. in 2020 than the rate among other groups. Thirty percent of the total excess potential years of life lost in the U.S. were among Black people, and 31% were among Hispanic people, rates disproportionate to their shares of the total U.S. population.

Prior to 2020, the U.S. already had the highest rate of premature deaths among peer countries. This analysis shows the gap in premature mortality rates between the U.S. and peer countries has increased due to the pandemic.

The analysis is available on the Peterson-KFF Health System Tracker, an online information hub dedicated to monitoring and assessing the performance of the U.S. health system.

Introduction

The extent to which states and/or employers might adopt COVID-19 vaccine mandates remains an open question but could affect the distribution and uptake of vaccinations. A substantial share of the population must acquire immunity, either through vaccination or previous infection, in order to get the pandemic under control. With several vaccines available for emergency use in the U.S. and distribution efforts underway, policymakers and public health officials are increasingly focusing on ways to accelerate the pace and maximize the extent of vaccine uptake. These efforts include increasing vaccine supply and relaxing eligibility requirements, public education and outreach campaigns, ensuring the accessibility of vaccine administration sites, job-based incentives, and even mandates. Indeed, COVID-19 vaccine mandates are likely to become a more prominent issue as soon as any one of the current vaccines operating under an EUA is approved and licensed by the FDA.

Public opinion on such mandates is mixed, with our surveys showing about half of the public saying employers should be allowed to require vaccination for COVID-19 (51%) and 45% saying they should not be allowed to do so. While vaccine enthusiasm is rising in the U.S., with more than 6 in ten saying they have already or plan to get vaccinated as soon as possible, there is a small share who say they will only do so if required. This issue brief explains the legal basis for vaccine mandates by the federal government, states, and private employers; highlights considerations for mandates while the COVID-19 vaccine is under an EUA; and discusses mandate exemptions based on disability or religious objection.

Can the federal government mandate vaccines?

The federal government’s authority to institute a general vaccine mandate is unclear, and has not yet been tested in the courts, though it is likely limited at best. The Commerce Clause of the U.S. Constitution gives Congress the power to regulate commerce between states as well as with foreign countries. Drawing on this authority, the Public Health Service Act (PHSA) authorizes the HHS Secretary to adopt quarantine and isolation measures to prevent the spread of communicable disease among states but does not specifically mention federal vaccine mandates. Read broadly, the PHSA might allow the federal government to mandate vaccines to prevent the transmission of infectious disease between states or from foreign countries, though such measures have not been adopted – or reviewed by courts – to date. It is clear that the federal government does have authority to mandate vaccines for members of the military, and those targeted mandates have been upheld by courts. In addition, federal law mandates certain vaccinations for immigrants seeking to enter the U.S. General vaccine mandates, however, are generally within the purview of state and local governments, as explained below, with the federal government playing a supporting role. For example, the increase in the number of states requiring vaccination to attend school is attributed to “urg[ing]” from the CDC after measles outbreaks in the 1960s. Otherwise, the federal government’s public health efforts have been largely focused on quarantine and isolation, rather than vaccine mandates.

Can state governments mandate vaccines?

The U.S. Supreme Court upheld a state vaccine mandate over a century ago, in a case setting out the legal test still applied today. The vaccine mandate in that 1905 case, Jacobson v. Massachusetts, is based on states’ broad authority to regulate individual rights to protect the general health, safety, morals, and welfare of society as a whole, known as the police power. Jacobson involved a city board of health law requiring all adults over age 21 to be vaccinated against smallpox during an outbreak. The city vaccination mandate was adopted pursuant to a state law that authorized local boards of health to “require and enforce” vaccination if “necessary for the public health or safety.” An individual who was fined for refusing to be vaccinated challenged the law, citing general concerns about the vaccine’s safety and efficacy. The Court deferred to the legislature’s judgment that vaccination was a safe and effective means of preventing smallpox and upheld the law as a reasonable regulation of public health and safety. The Court noted that individual constitutional rights are not absolute in all circumstances but instead are subject to “manifold restraints to which every person is necessarily subject for the common good.” The Court concluded that “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

Today, all states have school vaccination requirements for children, subject to exemptions discussed below. State and local government authority to condition school attendance on vaccination was upheld by the Supreme Court in a 1922 case, Zucht v. King. That case was brought on behalf of an unvaccinated child who was excluded from school, challenging a city ordinance that required proof of vaccination to attend. The Court ruled that the vaccine mandate was reasonable and referred to Jacobson as having “settled that it is within the police power of a state to provide for compulsory vaccination.” Such school mandates are seen as having played a “major role in controlling rates of vaccine-preventable diseases in the United States.”

Current state vaccination laws for adults are focused on health care workers and patients in health care facilities, rather than the general population. State vaccination mandates for health care workers vary but generally include the requirement to offer certain vaccines, and in some cases document employee vaccination status (subject to exemptions described below). For example, 18 states require flu vaccine to be offered to hospital staff and/or require hospitals to report the status of employee vaccination to the state, and 15 states have measles, mumps, and rubella vaccination laws for hospital health care workers.

Can private employers mandate vaccines?

Some private employers require vaccines, such as for influenza, for employees in health care settings. States may prohibit vaccine mandates as a condition of employment and instead require that employees have the ability to opt out. Employers also may be subject to collective bargaining agreements that require them to negotiate with employee unions before imposing a vaccine mandate as a condition of employment. Employer vaccine mandates are subject to exemptions based on disability or religious objection as explained below.

How does the FDA emergency use authorization affect COVID-19 vaccine mandates?

It is unclear whether COVID-19 vaccination could be legally mandated while the FDA’s EUA is in place. Current mandates apply to vaccines that have been fully approved by the FDA. By contrast, COVID-19 vaccines have been authorized under the FDA’s temporary emergency use authority. The EUA statute provides that individuals must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” Some commentators have interpreted this provision to mean that individuals cannot be required to receive a vaccine that is subject to an EUA. Others have questioned whether the reference to “consequences” of refusing a vaccine subject to an EUA includes not only potential health consequences but also other adverse outcomes such as loss of employment. The legislative history does not contain any references to mandates for vaccines under EUA. The EUA law was created after the September 11^th terrorist attacks, and to date, courts have not interpreted this provision.

In addition to the legal uncertainty, some commentators have raised ethical questions about mandating a vaccine that is subject to EUA. The EUA authority requires less evidence of safety and efficacy compared to full FDA approval (usually based on the duration of safety and efficacy data available). Specifically, an EUA is permitted during a public health emergency, if the FDA determines that it is reasonable to believe the vaccine “may treat or prevent” the disease, the known and potential benefits outweigh the known and potential risks, and no approved adequate available alternative exists (emphasis added). By contrast, full FDA approval involves a finding that the vaccine is safe, effective, and pure. For COVID-19 vaccines, the FDA has set a high standard for determining whether to grant an EUA, including requiring data from at least one Phase 3 clinical trial that demonstrates the vaccine’s safety and efficacy “in a clear and compelling manner” and setting minimum efficacy and safety requirements. At least one vaccine manufacturer has indicated that it now has enough safety and efficacy data to submit an application for full approval to the FDA.

What is the status of COVID-19 vaccine mandates to date?

Neither states nor the federal government have mandated vaccination for COVID-19 to date, though some employers have done so. If state websites refer to vaccine mandates, they tend to do so to clarify that no requirement to receive a COVID-19 vaccine is in place. In addition, some states are considering legislation that would prohibit employers from adopting COVID-19 vaccine mandates for employees generally or limit employer vaccine mandates to only employees working in health care settings. A few states are considering legislation that would prohibit other entities, such as schools or private businesses, from conditioning attendance or services on receipt of a COVID-19 vaccine. Absent state prohibitions on vaccine mandates, some employers have adopted COVID-19 mandates for their employees. So far, news and other reports suggest employer mandates for COVID-19 vaccines do not appear to be widespread and tend to be limited to health care settings, such as a health system in Texas, settings with congregate and/or medically vulnerable populations such as nursing homes, assisted living facilities, and at least one county detention center (discussed below), and some colleges and universities.

To date, at least one federal lawsuit has been filed challenging an employer’s COVID-19 vaccine mandate on the grounds that vaccines are still under emergency use authorization. The plaintiff in Legaretta v. Macias works for a New Mexico county detention center and is challenging a county directive requiring first responders to receive the COVID-19 vaccine “as a condition of ongoing employment.” He argues that the vaccination mandate is illegal because it conflicts with the federal law regarding EUAs. On March 4, 2021, the trial court judge refused to enter a temporary restraining order, finding that the plaintiff had failed to show “immediate or irreparable injury” because he had not been fired or disciplined for failing to take the vaccine.

So far, most colleges and universities have been encouraging but not mandating COVID-19 vaccines for students, though several, starting with Rutgers University and Cornell University, recently announced that they will require students to be vaccinated against COVID-19 for attendance in Fall 2021. Both universities allow for exemptions based on disability and religious objection (discussed below). Other colleges and universities are also beginning to announce similar policies, in some cases for staff and faculty as well.

When must exemptions from vaccine mandates be considered?

In December 2020 guidance, the Equal Employment Opportunity Commission (EEOC) stated that employers may require employees to provide proof of COVID-19 vaccination without implicating the Americans with Disabilities Act (ADA), though the guidance on this point does not address the vaccines’ current EUA status. According to the EEOC, such an inquiry is allowed because it is not likely to elicit information about a disability. However, if an employer asks questions that are likely to elicit disability-related information, such as why an employee did not receive a vaccine, the ADA would apply, and the employer would have to show that the questions are “job-related and consistent with business necessity.”

However, vaccine mandates are subject to reasonable accommodation requests under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Specifically, Title II of the ADA applies to state and local governments, Section 504 applies to the federal government in its role as an employer, and Title I of the ADA applies to private employers. According to the EEOC guidance, if an employer mandates vaccines, and an employee indicates they cannot receive a vaccine due to a disability, the employer generally must consider whether a reasonable accommodation is warranted. Reasonable accommodations could include measures such as temporary job restructuring, permission to work from home, or distancing from coworkers or customers and should be identified using a “flexible interactive process” involving the employer and employee. Employers do not have to offer reasonable accommodations that create an “undue hardship” such as “significant difficulty or expense.” The EEOC guidance notes that the “prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.” However, the EEOC guidance does not directly address whether an employer can mandate vaccination while the COVID-19 vaccine is subject to an EUA (discussed above).

An employer does not have to provide a reasonable accommodation to employees who pose a “direct threat.” A direct threat is a “significant risk of substantial harm” to their own or others’ health or safety, which cannot be reduced or eliminated by a reasonable accommodation. In determining whether there is a direct threat, employers must conduct an individualized assessment that considers (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. The EEOC guidance confirms that a direct threat includes the “determination that an unvaccinated individual will expose others to the virus at the worksite.” However, the EEOC guidance also notes that an employer “cannot exclude the employee from the workplace – or take any other action – unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” If it is not possible to reduce the direct threat to an acceptable level, the EEOC guidance provides that an “employer can exclude the employee from physically entering the workplace.” However, the EEOC guidance also notes that an employer cannot automatically fire the employee and instead must first consider reasonable accommodations such as telework.

Employer vaccine mandates also are subject to religious accommodations under Title VII of the Civil Rights Act, though courts have held that state vaccine mandates (such as those for school attendance) are not constitutionally required to provide religious exemptions. Title VII requires employers to accommodate an employee’s sincerely held religious beliefs that conflict with job requirements unless the accommodation is an undue hardship on the conduct of the employer’s business. In general, the EEOC guidance notes that an employer should accept an employee’s statement about the sincerity of their religious belief. An undue hardship exists when there is more than a de minimus cost or burden on the employer. If the employer cannot reasonably accommodate an employee who is unvaccinated due to religious belief, the EEOC guidance provides that the employer may exclude the employee from the physical workplace but may not automatically fire the employee.

Looking Ahead

As COVD-19 vaccination efforts progress, it will be important to continue to monitor changes in government or employer policy as well as public opinion regarding vaccine mandates; there are likely to continue to be some who will not get vaccinated, including those who will only do so if required in some way. Court rulings also may affect the viability or scope of vaccine mandates adopted by employers or other entities, as well as the exemptions available to people with disabilities or religious objections, particularly given the uncertain legality of mandates while an EUA is in place. It is clear that widespread take-up of COVID-19 vaccines is necessary to get the pandemic under control. However, even if mandates ultimately are determined to be permissible, policymakers also will likely consider whether mandates are the most effective means of accomplishing this goal.

As the vaccine rollout continues across the country, a key question is whether and how far governments and employers can go to require the public and workers to get vaccinated. A new issue brief explains the legal basis for vaccine mandates and what limitations might apply.

KFF’s COVID-19 Vaccine Monitor shows that while a growing share of adults have gotten vaccinated or intend to as soon as possible, a small but persistent group (7%) say they would only get vaccinated if required to do so.

It remains unclear if the federal government has the authority to issue a general vaccine mandate, though it is also considered unlikely such a broad mandate would be sought for COVID-19. The authority for general vaccine mandates at the state-level to protect public health has been well-established since the 1905 case, Jacobson vs. Massachusetts. No states have a COVID-19 vaccine mandate in place, as of April 5, 2021.

Some employers have instituted COVID-19 vaccine mandates in the context of health care settings, and universities and colleges are starting to do so for students, though these efforts do not yet seem to be widespread. At the same time, some states are considering legislation that would prohibit an employer’s ability to create a vaccine mandate. Our latest COVID-19 Vaccine Monitor report found that half of the public believes employers should be allowed to require the vaccine for employees. As seen with other vaccine mandates, such as the influenza vaccine, disability or religious objections may give employees the ability to opt out of a vaccine mandate.

All three COVID-19 vaccines were authorized under the U.S. Food and Drug Administration’s (FDA) Emergency Use Authorization (EUA). It remains unclear if COVID-19 vaccines could be legally mandated while under an EUA, and this is currently being tested in the courts. However, the legal basis for vaccine mandates is clearer for vaccines that receive full FDA approval.

A new KFF analysis estimates 5.1 million people nationally fall into the Affordable Care Act’s “family glitch” that occurs when a worker receives an offer of affordable employer coverage for themselves but not for their dependents, making them ineligible for financial assistance for marketplace coverage.

The so-called glitch occurs because the ACA prohibits people with an offer of affordable employer coverage from purchasing subsidized coverage through the ACA marketplace. Under current rules, the affordability of employer coverage is based on what it would cost just to cover the worker and not their families.

Worker-only coverage with an out-of-pocket premium up to 9.83% of the worker’s household income is considered affordable, even if the additional cost of covering their dependents would push them above that threshold. President Biden hinted about a potential administrative fix to address the glitch in a recent executive order.

The analysis provides a demographic profile of those currently affected by the glitch:

• The vast majority (85%) are currently enrolled in employer-sponsored coverage and likely spending far more for their health insurance than people with similar incomes with subsidized coverage through the marketplace. Nearly a half million are uninsured.

• Most (54%) are children, and, among adults, most (59%) are women.

• Texas (671,000), California (593,000), Florida (269,000), and Georgia (206,000) have the largest number of people affected by the glitch.