Is San Francisco’s new vaccine mandate legal? Here’s the analysis

San Francisco on Thursday announced vaccine mandates for some indoor gatherings, begging the question: Is that legal?

San Francisco on Thursday announced vaccine mandates for some indoor gatherings, begging the question: Is that legal?

Starting Aug. 20, entering a bar, restaurant, gym or indoor venue that serves food and drinks will first require showing proof of vaccination. San Francisco became the first major city to require full vaccination to such activities. The order doesn’t apply to people ordering food or drinks to go or children 12 or under who are ineligible for the vaccines.

Dorit Rubinstein Reiss, a law professor at UC Hastings who sits on the Vaccine Working Group on Ethics and Policy, said San Francisco’s latest health order appears to meet the standard of what’s legally required.

Jurisdictions are able to mandate vaccines as long as it is reasonable to do so, as a result of Jacobson v. Massachusetts, a 1905 Supreme Court case that upheld states’ authority to enforce vaccine mandates. San Francisco’s rule, which is couched in the context of rising cases, doesn’t apply to children 12 and under, upholds in-person schooling, and allows for religious and medical exemptions.

The mandate is similar to one in New York City, which last week enacted requirements for proof patrons had at least one dose of a vaccine.

But despite the nation’s history of vaccine requirements, this type of mandate is new to experts like Rubinstein Reiss. Many businesses may have been afraid to enforce inoculation restrictions without putting responsibility on The City, she said. But some businesses and customers may want to sue, citing undue burden or civil liberties.

“I don’t think we’ve ever seen this before,” Rubinstein Reiss said. “Before COVID-19, I don’t know of any such mandate. I expect we will see litigation.”

Some businesses in July began to require proof of vaccination in an effort to stave off another shutdown and instill a sense of safety for customers. The San Francisco Chamber of Commerce embraced the idea, as did the San Francisco Independent Fitness Studio Coalition on Thursday, after Breed’s decree.

“It provides our clients with one more level of assurance that they can experience the mental and physical benefits of fitness in a safe, healthy environment,” said Dave Karraker, a board member of the coalition representing small fitness studios. “We feel anything that can be done to avoid the capacity limits or the full shut down of indoor fitness that we experienced last year is in everyone’s best interest, particularly those small, neighborhood businesses that suffered so much since the start of the pandemic.”

San Francisco is requiring all city workers to be vaccinated once the U.S. Food and Drug Administration grants full approval. San Francisco Unified School District, urged by its labor unions, will also require staff to be vaccinated or undergo regular testing. City College of San Francisco will require proof of vaccination as of Oct. 1.

“Vaccines are our way out of the pandemic, and our way back to a life where we can be together safely,” said Mayor London Breed on Thursday. “Many San Francisco businesses are already leading the way by requiring proof of vaccination for their customers because they care about the health of their employees, their customers, and this city. This order builds on their leadership and will help us weather the challenges ahead and keep our businesses open.”

Students in K-12 schools, however, are a different manner. The federal government is not allowed to implement vaccine mandates, but since the 1970s, all 50 states widely adopted school vaccine requirements for polio, measles and other diseases.

But today, at least nine states, including Arizona and Arkansas, have already introduced or enacted laws barring coronavirus vaccine mandates. There’s also the fact that vaccines are currently approved under emergency use authorization and not all children are eligible. Though mandates under emergency use are proving themselves viable, school institutions and jurisdictions may not want to go through the same fight multiple times.

“It’s always been a battle,” Rubenstein Reiss said. But today, “We have an issue with people who draw on different political views and different sources of information. [Some] people don’t like vaccine mandates.”

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