In 1905, the Supreme Court ruled against a pastor, Henning Jacobson, who had sued the state of Massachusetts for requiring residents to take a vaccine after an outbreak of smallpox. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others,” the court ruled. “It is, then, liberty regulated by law.”
Business & Economy
Dec. 11, 2020, 6:16 p.m. ET
That ruling, and others after, it have repeatedly reaffirmed this principle. As for private businesses, they can choose to hire, fire and transact with anyone, unless they discriminate based on a protected category.
There is still room for interpretation. Lawyers could argue that prior cases didn’t consider a drug authorized only for emergency use by the F.D.A., as the early coronavirus vaccines will be. Or perhaps a more conservative-leaning Supreme Court would be open to revisiting prior precedent.
Over the past week, I spoke with executives at companies in various industries to see whether they intend to require vaccination of employees or customers. None wanted to speak on the record.
Almost all said they planned to recommend the vaccine, but not make it compulsory. Several said that they have tried to create a culture of trust, and a vaccine mandate would undermine that trust. Others worried about legal liability if an employee had adverse side effects from the vaccine. Some said they would like to mandate the vaccine, but worried that a backlash could spiral into a public-relations nightmare.
This is not a hypothetical thought experiment. When the chief executive of Qantas, the Australian airline, said he would require passengers to be vaccinated — “certainly for international visitors coming out and people leaving the country, we think that’s a necessity,” he said — the backlash was swift. A travel agency in Britain stopped booking flights with the airline, stating that “we feel that bodily autonomy with regard to medical intervention is a personal choice and not something to be forced onto people by businesses.”
It is understandable that executives would be anxious about courting potential controversy, but leadership is about making difficult decisions when the stakes are high. Simply recommending that people take the vaccine may not be enough.