What is and isn’t allowed in Colorado when it comes to compelling people to get a coronavirus vaccine

Now that everyone in Colorado age 16 and older is eligible to get a coronavirus vaccine, appointments are as hard to get as courtside seats at the Nuggets.

But, as Gov. Jared Polis has acknowledged, that will soon change — when everyone who wants a vaccine has already gotten one. And then what? How far can governments, lawmakers, employers and businesses go to push vaccination rates even higher in order to reach herd immunity against the virus?

We’ve compiled a list of answers to the most commonly asked questions about coronavirus vaccine mandates, passports and incentives. 

Have other questions that we didn’t answer? Send them our way, and they may become the subject of a future story.

Will the federal government mandate the coronavirus vaccine for everybody?

No one at the moment is pushing for a broad, national vaccination mandate.

“I don’t think it should be mandatory,” President Joe Biden said in December, prior to taking office. “I wouldn’t demand it be mandatory.”

One key reason is that the vaccines have not yet received full approval from the Federal Food and Drug Administration. The three vaccines in use in the United States — ones made by Pfizer, Moderna and Johnson & Johnson — are all being administered under an “emergency use authorization,” also known as an EUA. It’s a way for urgently needed vaccines and drugs to get to the public while the full, longer authorization process takes place.

Federal law says that people given products approved under an EUA should be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product.” This is why forms for receiving the coronavirus vaccine all require acknowledgment from recipients that the inoculation is voluntary.

Will people such as hospital workers be required to get the vaccine?

For the same reason the federal government can’t mandate vaccination for everybody right now, it can’t mandate vaccination for people who work in health care or other important industries.

In testimony before an FDA advisory committee in October, Dr. Amanda Cohn, an official with the federal Centers for Disease Control and Prevention, said federal law does not allow the government to mandate vaccines, even for workers in hospitals, when the vaccines only have approval through an EUA.

“Mandates have been shown to increase coverage in some settings, but the federal government would not be mandating use of these vaccines,” Cohn said.

Hospitals do have the ability to mandate vaccines that have been fully licensed.

“But in the setting of an EUA, patients and individuals will have the right to refuse the vaccine,” she said.

Hospitals in Colorado have been following this guidance when thinking about whether they can require their staff to get vaccinated.

When asked this question, SCL Health spokesman Greg Moss pointed to Cohn’s testimony that “vaccines are not allowed to be mandatory. So, early in this vaccination phase, individuals will have to be consented and they won’t be able to be mandatory.” 

The same goes for other hospitals in Colorado.

“Even if you wanted to, you wouldn’t do that because it’s emergency use. So it’s really voluntary,” Lindy Garvin, the vice president of quality and patient safety for the HealthONE hospital system, said in December.

Dr. Heather Young, an infectious disease specialist with Denver Health and leader of an internal committee on infection protocols, said a lot of employees have been asking if the vaccine will become mandatory. The first response from Denver Health managers, Young said, is a “no” based on the FDA’s emergency authorization status.

While the coronavirus vaccines are effective and highly recommended, there’s just not enough long-term research yet for Denver Health to mandate it for employees. About 75% of Denver Health employees had taken the vaccine by the third week in March.

Is Colorado planning to require vaccinations?

No, say Polis and state health officials.

“There is no statewide vaccination mandate, and the state of Colorado is not currently pursuing any mandates,” Jessica Bralish, the communications director for the state Department of Public Health and Environment, wrote in an email.

The state also isn’t planning to require its 30,000-person workforce to get inoculated against COVID-19.

“The state has no plans to do that,” the Democratic governor added. 

Additionally, lawmakers at the state Capitol are not discussing legislation that would require people to get inoculated against COVID-19.

Can employers require their workers to get vaccinated?

This is a legal gray area.

Plenty of legal experts believe that they can. The U.S. Equal Employment Opportunity Commission in December released guidance suggesting that employers can mandate coronavirus vaccination the same way they can already mandate, say, flu vaccination.

But the power to mandate, at most, is not absolute. There must be a job-related need for vaccination. And the mandates must contain exemptions for employees who have a medical condition that precludes vaccination and for employees who have sincerely held religious beliefs against vaccination.

The EEOC guidance, though, doesn’t touch the question of whether employers can require a vaccination that has received only emergency approval from the FDA. And this has led some legal observers to caution employers on rushing to mandate.

In an article written last month for the publication Hotel Executive, Denver-based attorney Christine Samsel, a shareholder with the firm Brownstein Hyatt Farber Schreck, said it will take time for the legal questions to be settled. In the meantime, an employer who fires someone for refusing to get vaccinated could find themselves on the receiving end of a lawsuit.

“At this juncture, given the uncertainty surrounding the legality of mandating EUA-status vaccines, plus the other issues raised by mandatory vaccines, the safer course of action for employers is to encourage employees to get the vaccine rather than mandating it,” Samsel wrote.

This appears to be what many employers plan to do.

In a February survey by the labor law firm Littler, 48% of companies polled said they would not require coronavirus vaccination, compared with only about 10% that said they had already required or were considering requiring vaccination for at least some workers. The remainder were undecided.

Do we mandate other kinds of vaccines? 

There are all kinds of other vaccine mandates, or mandates-with-small-loopholes. Take the annual flu shot, for example. Colorado is among the states that require health care employers to certify that at least 90% of their employees get the annual flu shot. This was somewhat controversial when it was passed by the state Board of Health in 2012, but Colorado was by no means the first state to do this. Employees can offer a medical reason for not getting the flu shot but other exemptions are not allowed. 

You can argue with the philosophy of the mandate, but it’s hard to argue with its effectiveness. At Denver Health, for example, 99% of employees got the flu shot this year, a spokeswoman said. Any given year’s flu vaccine may only be up to 60% effective at blocking infections, but public health experts believe it prevents millions of dangerous cases each year. 

Denver Health says that out of about 7,000 employees subject to the flu vaccine, it gets 40 to 50 medical exemption requests and 50 to 60 religious exemption requests a year. 

Colorado schools are another place with a mandate. School-age children are required to get the standard pediatric set of vaccines such as measles, mumps, whooping cough and more, though not the flu. 

With heated debate, the state legislature tightened up the school-age vaccine exemption rules a little last year. Colorado previously let parents opt out and still send their kids to school, without stating any particular reason. Now, parents seeking an exemption must get a doctor to sign the form after they have heard about the importance of vaccines, or watch an as-yet unreleased online video from the state health department. Gov. Jared Polis and his administration have so far not indicated willingness to go further to tighten up school vaccine rules. 

Vaccine advocates in Colorado who oppose the nationally-promoted legislation prohibiting mandates for coronavirus want to make sure new policies don’t mess with the existing flu shot requirement, which they find enormously successful. 

“We are urging lawmakers to not preempt existing policies, like health care worker flu requirements, that are essential to infection control,” said Immunize Colorado’s Katie Waters.

Can employers give workers a “bonus” or incentive if they take the coronavirus vaccine? 

Yes.

The Colorado Department of Corrections, for instance, is offering $500 to prison staff to get vaccinated. People who have a medical or religious reason to not receive the vaccine are also eligible for the bonus.

Though prisons have been the source of some of the largest coronavirus outbreaks in the state and correctional workers were some of the first people to become vaccine-eligible in Colorado, vaccination rates have lagged. As of last week, approximately 40% of the department’s staff had been fully vaccinated, with 4% having received a first dose of vaccine.

Around 40% of inmates in the state prison system had received a first dose of vaccine, as of last week.

The Department of Corrections is not requiring its workers to be vaccinated.

“It is important for our staff to get vaccinated in order to protect themselves, their co-workers, their families, their communities and the people in our custody,” DOC spokeswoman Annie Skinner wrote in an email in response to a question about vaccine mandates.

JBS, a meatpacking company, also offered extra pay to employees that got vaccinated. Companies across the U.S. have gotten creative to encourage their workers to get inoculated. 

What’s a vaccine “passport,” and are they coming to Colorado? 

A “mandate” is the government saying everyone in a certain group has to get a vaccine. A “passport” is an idea driven by businesses, such as airlines or concert promoters, that want to assure consumers by asking for proof of the coronavirus vaccine before using their services. It’s not a mandate because you have the choice whether to use the service.

Vaccine passports are typically phone apps that display proof of vaccination status, and they are being developed around the world. In the United States, the state of New York has rolled one out in partnership with a private company.

The federal government is also said to be consulting on plans for vaccine passports. But officials from the Biden administration say the federal government won’t mandate use of vaccine passports.

In Colorado, the Department of Public Health and Environment is “looking to collaborate across state agencies and with the business community to increase vaccine uptake,” Bralish, the CDPHE spokeswoman, wrote in an email. This could include vaccine passports.

While vaccine passports and similar apps in other states connect to those states’ immunization registries, CDPHE says it will not allow companies to have direct access to Colorado’s registry, instead requiring them to verify vaccination status another way, such as asking people to show their vaccination cards voluntarily.

Bralish said anything that happens will be Colorado-specific and said privacy concerns will have a high priority.

“A business could not access a customer’s protected health information, such as their COVID-19 immunization status, unless that person volunteered that information,” Bralish wrote.

The Denver Post was the first to report on CDPHE’s exploration of vaccine passports.

Is there an effort to block any mandates in Colorado? 

House Bill 1191 would prohibit Colorado from making any COVID-19 vaccine mandatory, as well as prohibit employers, including health facilities, from making coronavirus vaccination a condition of employment.

The measure, brought by Republican state Reps. Tonya Van Beber and Kim Ransom, has almost no chance of passing. Democrats, who control the statehouse, will likely reject it during its first hearing, which has yet to be scheduled.  

The legislation also seeks to outlaw discrimination “against a client, patron, or customer based on COVID-19 vaccine status.” 

Under the bill, someone who feels they are discriminated against because of their vaccine status would be able to file a lawsuit and seek damages.

“The bill was really in response to people who have lost jobs for refusing an experimental procedure,” Ransom said. “I’m actually glad that they’re available for people that want them. But that’s the key: for people that want them.”

What does the latest polling say about Coloradans’ willingness to get vaccinated?

Recent polling by the state suggests there are still hurdles to ensuring that 70% to 80% of the population is vaccinated in order to reach herd immunity and knock out the pandemic. 

Sixteen percent of those polled said they would not get the vaccine, while 10% said they would only get it if they are required to get inoculated. Forty-nine percent of those polled said they will get it as soon as they can while 25% said they will wait and see how it’s working before they get innoculated. 

The poll, conducted by Kupersmit Research on behalf of the Colorado Department of Public Health and Environment and aimed at determining Coloradans feelings about being inoculated, surveyed 592 Colorado adults between Feb. 17 and March 1 who have yet to be vaccinated. It had a margin of error of 4 percentage points.

Of the people who said they would not get vaccinated or would only get vaccinated if they are required to do so, 45% said they were worried about the vaccines’ safety and side effects, while 28% said they were worried about the vaccines being too new, rushed and not studied enough. About 8% percent said they were fearful the vaccines contained microchips or are being used for population control.

While the numbers may seem bad, they are improving. Brandy Emily, deputy director of the immunization branch at CDPHE, told state lawmakers last month that vaccine hesitancy has dropped since the state began polling in September. 

“We have made large strides over the last few months,” she said.

CORRECTION: This story was updated on April 6, 2021, at 8:10 p.m., to include clarified information from CDPHE about the potential ability of vaccine passport programs to access the state’s immunization registry. CDPHE says that “no business could access a customer’s protected health information, such as their COVID-19 immunization status via the state’s immunization system.”