COMMENTARY

Vaccine Mandates, Passports, and Kant

Kevin T. Powell, MD, PhD

July 20, 2021

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Houston Methodist Hospital in June 2021 enforced an April mandate that all its employees, about 26,000 of them, must be vaccinated against COVID-19. In the following weeks, many other large health care systems adopted a similar employer mandate.

Compliance with Houston Methodist's mandate has been very high at nearly 99%. There were some deferrals, mostly because of pregnancy. There were some "medical and personal" exemptions for less than 1% of employees. The reasons for those personal exemptions have not been made public. A lawsuit by 117 employees objecting to the vaccine mandate was dismissed by a federal district judge on June 12.

Objections to the vaccine mandate have rarely involved religious-based conscientious objections, which need to be accommodated differently, legally and ethically. The objections have been disagreements on the science. As a politician said decades ago: "People are entitled to their own opinions, but not their own facts." A medical institution is an excellent organization for determining the risks and benefits of vaccination. The judge dismissing the case was very critical of the characterizations used by the plaintiffs.

The vaccine mandate has strong ethical support from both the universalizability principle of Kant and a consequentialist analysis. The U.S. Equal Employment Opportunity Commission on May 28, 2021, released technical assistance that has generally been interpreted to support an employer's right to set vaccine requirements. HIPAA does not forbid an employer from asking about vaccination, but the EEOC guidance reminds employers that if they do ask, employers have legal obligations to protect the health information and keep it separate from other personnel files.

In the past few years, many hospitals and clinics have adopted mandates for influenza vaccines. In many children's hospitals staff have been required to have chicken pox vaccines (or, as in my case, titers showing immunity from the real thing – I'm old) since the early 2000s. Measles titers (again, mine were acquired naturally – I still remember the illness and recommend against that) and TB status are occasionally required for locum tenens positions. I keep copies of these labs alongside copies of my diplomas. To me, the COVID-19 mandate is not capricious.

Some people have pointed out that the COVID-19 vaccines are not fully Food and Drug Administration approved. They are used under an emergency use authorization. Any traction that distinction might have had ethically and scientifically in November 2020 has disappeared with the experience of 9 months and 300 million doses in the United States. Dr Fauci on July 11, 2021, said: "These vaccines are as good as officially approved with all the I's dotted and the T's crossed."

On July 12, 2021, French President Macron, facing a resurgence of the pandemic because of the delta variant, announced a national vaccine mandate for all health care workers. He also announced plans to require proof of vaccination (or prior disease) in order to enter amusement parks, restaurants, and other public facilities. The ethics of his plans have been debated by ethicists and politicians for months under the rubric of a "vaccine passport." England has required proof of vaccination or a recent negative COVID-19 test before entering soccer stadiums. In the United States, some localities, particularly those where the local politicians are against the vaccine, have passed laws proscribing the creation of these passport-like restrictions. Elsewhere, many businesses have already started to exclude customers who are not vaccinated. Airlines, hotels, and cruise ships are at the forefront of this. Society has started to create consequences for not getting the vaccine. President Macron indicated that the goal was now to put restrictions on the unvaccinated rather than on everyone.

Pediatricians are experts on the importance of consequences for misbehavior and refusals. It is a frequent topic of conversation with parents of toddlers and teenagers. Consequences are ethical, just, and effective ways of promoting safe and fair behavior. At this point, the public has been educated about the disease and the vaccines. In the United States, there has been ample access to the vaccine. It is time to enforce consequences.

Daily vaccination rates in the United States have slowed to 25% of the peak rates. The reasons for hesitancy have been analyzed in many publications. Further public education hasn't been productive, so empathic listening has been urged to overcome hesitancy. (A similar program has long been advocated to deal with hesitancy for teenage HPV vaccines.) President Biden on July 6, 2021, proposed a program of going door to door to overcome resistance.

The world is in a race between vaccines and the delta variant. The Delta variant is moving the finish line, with some French epidemiologists advising President Macron that this more contagious variant may require a 90% vaccination level to achieve herd immunity. Israel has started giving a third booster shot in select situations and Pfizer is considering the idea. I agree with providing education, using empathic listening, and improving access. Those are all reasonable, even necessary, strategies. But at this point, I anchor my suggestions with the same advice pediatricians have long given to parents. Set rules and create consequences for misbehavior.

Kevin T. Powell, MD, PhD, is a retired pediatric hospitalist and clinical ethics consultant living in St. Louis. He has no financial disclosures. Email him at pdnews@mdedge.com.

This article originally appeared on MDedge.com, part of the Medscape Professional Network.

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