Coronavirus

Halakhah Meets Non-Traditional Approaches to Ensuring COVID-19 Vaccination

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Sharon Galper Grossman and Shamai Grossman

 

As COVID-19 deaths surge, the world is rushing to vaccinate as many people as possible in order to achieve herd immunity and end the pandemic. Epidemiologists estimate that herd immunity might require vaccination of 90% of the population.[1] Israel, which leads the world in COVID-19 vaccination, is unlikely to reach even 70% immunity, as 28% of the population is under 16 and ineligible for vaccination and some minority of adults might have medical contraindications to vaccination. Neither of these populations can contribute to herd immunity, so reaching this goal requires vaccinating virtually every eligible adult. Although nearly 90% of the population over age 60 has been vaccinated, the percentages are substantially lower among haredi and Arab communities. If traditional vaccine approaches are not sufficient to convince them, the government must consider nontraditional methods to encourage or even compel compliance, including a government mandate to vaccinate, employer requirements, and banning the unvaccinated from Jewish communal life.

Does Halakhah Permit a Government to Mandate COVID-19 Vaccination?

To put the question in context, we must establish some basic legal principles:

Although Israel’s government has discussed the possibility of mandating COVID-19 vaccinations, this is unlikely as long as the vaccine is approved only for emergency use. The United States’ federal government lacks the authority to impose such a mandate. However, state and local governments may do so.

In 1905, Cambridge, Massachusetts, incarcerated Henning Jacobson for refusing a smallpox vaccination and fined him $5.00. He appealed, claiming that the government had infringed on his right not to be vaccinated. In Jacobson vs. Massachusetts, the Supreme Court ruled that when an individual’s right to refuse medical treatment challenges a government’s obligation to protect the health of its citizens and prevent disease, the government may require individuals to be vaccinated. This established the government’s authority to fine those who refuse vaccination and is the legal basis for vaccine requirements in schools.

Subsequent decisions have upheld this position, affirming that when medically necessary, public health overrides the rights of the individual. With this, states may deny the unvaccinated admission to schools, services, and jobs, and may fine or even incarcerate them. In 2019, for example, New York City passed a law fining those who refuse the measles vaccination.[2]

States are unlikely to add COVID-19 to the list of required vaccinations in light of the rarity of adult vaccine mandates and the absence of long-term safety data. Congress could institute a federal requirement by, say, legislating tax exemptions for the vaccinated or tax penalties for those who refuse.[3] Other countries plan to mandate COVID-19 vaccination. The Australian Health Minister suggested that vaccination would be a requirement for everyone entering the country.[4] Switzerland and Malaysia are making COVID-19 vaccination compulsory.[5] Many compare vaccination to wearing a seat belt to drive a car, a behavior that the government requires for the safety and security of its citizens.

But even if vaccine mandates are legal according to secular law, what about according to Halakhah?

There are three possible avenues by which Halakhah might permit a government mandate to vaccinate. COVID-19 vaccination fulfills several mitzvot including ve-nishmartem meod le-nafshotekhem, lo ta’amod al dam re’ekha, and ve-ahavta le-re’akha kamokha.[6] Virtually all poskim strongly encourage or obligate COVID-19 vaccination. If this is a mitzvah, and Halakhah permits forcing people to perform mitzvot, a government might be permitted to mandate vaccination as a means of encouraging the fulfillment of a religious obligation. In addition, if Halakhah permits compelling people to receive medical treatment, it might also permit a mandate to vaccinate, forcing people to receive the treatment that they need. Finally, if public safety trumps the rights of the individual, Halakhah would favor a government mandate that advances public safety, even at the expense of the individual.

Does Halakhah Permit Forcing People to Perform Mitzvot?

Rosh Hashanah 6a describes a Jew who does not want to bring a required korban, and concludes that the court may coerce him until he says, “I want to bring the offering.” How is this possible when mitzvot require intention? Mishneh Torah, Laws of Divorce 2:20, explains that Jews inherently want to fulfill mitzvot. One only refuses when overcome by his evil inclination. Coercion helps him discover his innate desire to act appropriately. Rambam, Sefer Ha-mitzvot, Mitzvot Assei 176 and Perush Ha-Mishnah Ketubot 4:6, suggests that the responsibility for enforcing all positive mitzvot resides in the Beit Din so that the performance of mitzvot not be left to the whim of man.

Ramban, Devarim 27:26, extends the enforcement responsibility to the Beit Ha-Melech, the presiding government, and to appointed leaders as well. According to the Hazon Ish, Halakhah views these leaders as the citizens’ representatives, with status equal to the Beit Din Ha-Gadol in Jerusalem.[7] The state of Israel in fact implements policies that enforce the performance of mitzvot; Israel’s High Court sanctions coercing religious observance as long as it fulfils the criteria of promoting a public good or preserving the State’s Jewish identity.[8] The prime examples of this coercion is legislation establishing Shabbat and Jewish holidays as national days of rest and the policy that all Jewish citizens who wish to marry, to do so by performing the positive commandment of mitzvat kiddushin and marry ke-dat moshe ve-yisrael. Since COVID-19 vaccination is a mitzvah that promotes the social good of ending the pandemic and preserving life, Halakhah might permit a government mandate which requires vaccination.

This is not to say that governments have blanket authority to legislate mitzvah observance, which may affect whether vaccination should be mandated on halakhic grounds. Hazon Ish (Yoreh De’ah 2) suggests that today, when Jews’ commitment to mitzvot is tenuous, we must limit mitzvah enforcement to situations where it will draw people closer to Judaism rather than repel them. It is not clear how the public might react to a COVID-19 vaccine mandate. Given the high social utility of the COVID-19 vaccine, which has the potential to end the pandemic and restore life to normal, it is possible that a government mandate to vaccinate might have a positive impact on mitzvah observance, especially if vaccination facilitates a return to Jewish ritual observance, fosters an appreciation for the sanctity of human life, and very clearly promotes the most primary value of Judaism, ve-ahavta le-reakha kamokha, love your neighbor as yourself. Alternatively, the vociferous anti-vaxxer movement may consider a decree to undergo injection with a foreign suspicious substance a personal, unacceptable invasion of the body and confirmation of the intrusiveness of Judaism into the most intimate areas of life. A government mandate might distance those who strongly object to vaccination from mitzvah observance.

Does Halakhah Permit Forcing People to Receive Medical Treatment?

Bava Metzia 85b recounts the story of Rebbi, who suffered from an eye condition and refused the treatment that his physician offered because, “I cannot bear it.” The doctor found a different treatment and healed his patient. This story illustrates the importance of patient autonomy and suggests that patients may not be forced to receive medical treatment against their will. Alternatively, perhaps Rebbi’s refusal was only appropriate because an alternative treatment existed.

When asked whether we consider one who refuses a life-saving treatment on Shabbat to be pious, or a pious fool, Radbaz 4:139 rules that he is not only a hasid shoteh, a pious fool, but also a murderer whom we may force to receive treatment. Shulhan Arukh Orah Hayyim 328:10, rules that if doctors disagree about whether to desecrate Shabbat to save a patient’s life, we desecrate Shabbat. Magen Avraham adds that if the patient refuses, we treat him against his will.

The prospect of forcing patients to receive medical treatment is not limited to Shabbat and patients who suffer from misguided sense of piety. Ya’avetz (Mor U-Ketziah 328) permits coercion for refuah vada’it, treatments with proven efficacy. If the treatment clearly is effective, “we force him against his will, in order to save a life… the opinion of the patient is not considered relevant, as he is not permitted to take his own life…” However, if the patient has genuine concerns regarding the efficacy of treatment, no matter how unfounded, or if the benefits of treatment are uncertain, we cannot force him to undergo it.

How does COVID-19 vaccine fit into Ya’avetz’s classification of treatments that we may force patients to receive? On the one hand, he might prohibit forcing COVID-19 vaccination, since he only allows coercion for treatments of proven benefit. While the efficacy of the vaccine has been established at 95%, its long-term effects are unknown. Although experts believe that adverse effects will be rare, the absence of such data creates some uncertainty about the vaccine. Further, Ya’avetz only permits coercion regarding the treatment of a life-threatening disease, but the vaccine is given to healthy individuals preemptively. In addition, because he prohibits coercion when the patient has genuine concerns regarding treatment, he might prohibit coercion of anti-vaxxers whose refusal to vaccinate reflects deep-rooted fears regarding the safety of vaccines. However, when the claims of anti-vaxxers are outright fabrications, we believe that he would dismiss these outright as they are not genuine concerns. Alternatively, perhaps Ya’avetz would categorize vaccines with 95% efficacy as refua vada’it for which we coerce treatment.

Iggerot Moshe Choshen Mishpat II:73 restricts coercion to situations where 1. the patient refuses treatment after every effort has been made to find a doctor whom the patient trusts, 2. all doctors recommend the treatment, and 3. waiting until the patient understands that the treatment is beneficial will compromise his health. However, if coercion will cause psychological harm, Rav Moshe holds that the patient may not be forced. Rav Moshe continues in his next teshuvah by explaining what forcing a patient to accept treatment looks like in practice. In Iggerot Moshe Hoshen Mishpat II:74, Rabbi Feinstein explains that one applies significant pressure to encourage the patient, but one may not “literally force someone against their will, to hold them down and force something down their throat.” For Rabbi Feinstein, coercion occurs through education, explaining until the patient understands the value of the treatment.

Rav J.D. Bleich writes that, “Recognized rabbinic decisors… have concluded that, at least in theory, a patient whose life is endangered can be compelled to accept medically-mandated treatment…If the efficacy of the medication or procedure is either substantiated by empirical data or predictable on the basis of cogent scientific reasoning, the therapy is probably mandated by Halacha.”[9] Halakhah permits forcing patients to receive life-saving treatment against their will.

However, the COVID-19 vaccine is administered to healthy patients. Does Halakhah permit forcing patients to receive preventive treatment against their will? In Tzitz Eliezer 15:40, Rav Waldenberg applies Ya’avetz’s teshuvah to the case of ophthalmologic examinations for yeshiva students, and rules that schools and parents have the immediate authority to compel these examinations. Failure to do so violates the biblical commandments of “love your neighbor” and “you shall not remain indifferent.” We may even perform preventative examinations against a patient’s will. Although Tzitz Eliezer permits coercion to ensure compliance with preventative treatment, other poskim might not permit coercion for non-life-threatening illnesses or disease prevention. Indeed, Rav Yehoshua Neuwirth, Rav Shlomo Zalman Auerbach, Rav Mordechai Willig, and Rav Hershel Schachter prohibit coercion of vaccination.[10],[11] However, they issued their rulings during normal times. It is possible they might rule differently during a pandemic when everyone without immunity might qualify as ill. In fact, in a personal communication with the authors (April 2021), Rav Schachter stated that in the case of COVID-19, parents may be compelled to vaccinate their child.

If Halakhah does permit forcing medically necessary preventative treatments with proven benefit, such that it would permit a government mandate of COVID-19 vaccination, then what means would be permitted to implement that mandate? Poskim disagree over how treatment is compelled: Ya’avetz permits physically forcing the patient to open his mouth and swallow the prescribed medicine, while Iggerot Moshe rejects brute force in favor of education. According to Rav Moshe, Halakhah favors patient instruction rather than the use of force. Given the lack of consensus among poskim regarding the permissibility of applying brute force to compel treatment, Halakhah might view a punitive government mandate to undergo preventive treatment such as COVID-19 vaccination less favorably than methods focusing on public education.

When Public Safety Conflicts with the Rights of the Individual, Whose Rights Prevail? What Steps Does Halakhah Permit to Protect Public Safety?

Halakhah permits interventions that force individuals to protect their health and avoid harming others. Bava Batra 8 states that all members of the community must contribute to building a fortification wall, even orphans and the poor, suggesting that in light of public safety the government may force all members of society to contribute to the greater good. In Tzitz Eliezer 15:39, Rav Waldenberg concludes that the public may ban smoking in public places to prevent smokers from polluting the air and harming others with second-hand smoke; similarly, one may publicly castigate smokers who foul the public air. In support of this position, he quotes Hayyim Sha’al Le-Hidah 26, who permits banishing an individual who harms a public bathroom. Rambam Hilkhot Rotzeah U-Shemirat Ha-Nefesh 11:5 writes, “The sages have prohibited many things because they are dangerous to life. If anyone disregards them and says ‘What claim have others on me if I risk my own life?’ or ‘I do not mind this,’ he should be lashed for disobedience.” Shulhan Arukh Hoshen Mishpat 427:1 codifies this position. Be’er Ha-Golah explains why Halakhah punishes one who harms himself and others: By refusing to take steps to protect his health and endangering himself, this recalcitrant individual displays the most brazen form of heresy, demonstrating that he despises the will of his creator and wants neither to serve Him nor to receive any reward from Him. How much greater his offense and the need for sanctions if his failure to care for himself compromises others? Mishneh Torah, Laws of Talmud Torah 6:14, invokes excommunication as a legitimate mechanism to compel the individual to remove a public hazard. When the rights of the individual threaten public safety, Halakhah prioritizes measures that protect the public, including taxes, banning the offender from public areas, lashes, and excommunication.

Rav Yuval Cherlow addresses the halakhic permissibility of a COVID-19 vaccine mandate and rules that the government may and perhaps must sanction those who refuse it.[12] Ethics and morality protect an individual’s free will, especially when dealing with a new technology such as the COVID-19 vaccine. However, society’s right to protect itself from infection prevails over the individual’s right to refuse vaccination. We must not allow those who refuse to be vaccinated to harm others. Rav Cherlow justifies sanctions against these people because they are putting themselves at high risk of infection, which they can transmit to others. In addition, infection adds stress to an already overwhelmed healthcare system and the economy. Rav Cherlow notes that we view a kohen who infects others because he has neglected himself as a shofekh damim, a murderer, who may not recite the priestly blessing. He proposes the following criteria to ensure that a COVID-19 vaccine mandate is just: Restricting it to situations where the risk of infection is great, such as large gatherings; basing it on epidemiological data; ensuring that it is proportional to the level of risk; and preventing unnecessary harm. For example, he argues against a vaccine mandate for admission to school, since the vaccine is not currently available for children. Thus, while the government may sanction those who refuse COVID-19 vaccination, those sanctions should use the least intrusive mechanisms to achieve the desired results. Despite halakhic sanctions for the use of brute force against those who threaten public safety, it would appear that Rav Cherlow does not favor this approach, preferring gentler interventions.

Are Citizens Obligated to Abide By Government Mandates?

Rav Asher Weiss and Rabbi Hershel Schachter believe that dina de-malkhuta dina, the halakhic principle that we adhere to the law of the land, extends to all laws that benefit the public, including vaccinations.[13],[14] Once the government mandates the COVID-19 vaccine, everyone must comply with that law, based on this halakhic principle. Thus, while citizens have the right to talk on a cell phone, drive, and visit public areas, when they contravene government legislation by driving above the speed limit or while talking on the phone, or by visiting a public area maskless or unvaccinated during a pandemic, the government has the right to sanction them with a fine or ticket.

Rav Aryeh Stern, Ashkenazi Chief Rabbi of Jerusalem, limits dina de-malkhuta dina to mitzvot related to monetary matters, and believes that instead, the obligation to adhere to government COVID-19 regulations, even at the expense of mitzvot such as learning Torah and communal prayer, derives from the unique power entrusted in the government of Israel as the representative of the Jewish people. With the end of Jewish kingship, the authority to rule over the Jewish nation passed to the nation as a whole and those who represent it; the government of Israel has the authority to impose even those COVID guidelines that interfere with mitzvot. Thus, Rav Stern might distinguish between the COVID-19 vaccine mandate of an Israeli government that represents am Yisrael and one from other governments, which lack this status.

In summary, Halakhah might permit a government mandate to undergo COVID-19 vaccination if the mandate enforces the performance of mitzvot that promote the public good and Jewish values. Halakhah would also allow a mandate that compelled medical treatments of proven benefit for active life-threatening diseases and perhaps even preventive measures permitting interventions which encourage patient education and other nonviolent measures while shunning brute force. Halakhah would also permit government sanctions against the recalcitrant individual who engages in behavior which threatens public safety. Having infected more than 150,000,000 individuals worldwide and led to the death of over 3,000,000 worldwide, COVID-19 poses a major threat to public health with devastating effects on the global economy. As such, Halakhah would permit public measures to enforce vaccination with the caveat that such measures are proportionate, epidemiologically sound, and designed to minimize collateral damage to the unaffected.

Vaccinate or Terminate: How does Halakhah Approach an Employer’s Mandate to Vaccinate?

In addition to government mandates for the COVID-19 vaccine, the private sector has also discussed implementing policies to restrict the participation of those who refuse COVID-19 vaccination. Does Halakhas allowance of sanctions against the unvaccinated extend to the private sector, permitting employers to refuse employment to the unvaccinated?

Vaccination will facilitate a return to the workplace and restore our economy. In a recent survey of 150 executives, 71% supported companies requiring COVID-19 vaccines.[15] United Airlines plans to require all employees to be vaccinated. Mobileye will only allow vaccinated employees into the workplace, requiring the unvaccinated to work from home or undergo COVID-19 testing every two days.[16] The Israeli Education Ministry is considering requiring vaccination for teachers. The Health Ministry might limit unvaccinated employees from entering workplaces with direct exposure to the public. Prime Minister Netanyahu defended this, citing a law enforced during the 1950s that required vaccination and imprisoned those who refused.[17]

A vaccinated workforce offers several benefits: Immunized employees have fewer absences and are less likely to expose others to infection, which eliminates the need for quarantine and closure due to exposure. Vaccinated employees may safely serve customers and will have less COVID-related anxiety. Customers will be more willing to meet with vaccinated employees. In the absence of a vaccine mandate employees could claim that their employer failed to provide a safe work environment. Schools, long-term and childcare facilities, and even stores with fully vaccinated staff can advertise their workers’ immunity to attract customers.

The greater the likelihood that an unvaccinated employee will endanger customers, fellow employees, or the public, the stronger the argument for an employer vaccine mandate. This is especially true for healthcare workers and employees of nursing and long-term care facilities whose patients are at higher risk of illness. Office-based businesses or those whose employees work remotely might find a vaccination requirement less relevant.

The Equal Employment Opportunity Commission (EEOC) has issued guidance that employers may encourage or require COVID-19 vaccinations because the virus is rampant and easily transmitted in the workplace, and employers are obligated to create a safe work environment.[18] If an employee refuses to be vaccinated, the employer must prove that he poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” (such as allowing him to work remotely or take a leave of absence). Employers must make accommodations for employees with medical exemptions. In contrast, an employer must accommodate those who claim religious or philosophical exemption only if it can be done with no burden to the employer. The cost of employing an individual with religious objections to vaccination is substantial. Since vaccination is available to all, requiring it would not qualify as discrimination. In addition, as long as vaccine mandates do not single out a religious group, they do not violate religious freedom.

Halakhah would strongly endorse and perhaps even obligate policies that create a safe, COVID-free work environment. Devarim 22:8 describes the mitzvah of ma’akeh, constructing a railing on the roof of one’s home: “When you build a new house, make a railing on your roof, and don’t bring bloodshed on your house if someone falls from it.” Sifrei Midrash Halakhah concludes that the repetition of the word “house” teaches that the obligation of ma’akeh applies not only to the house where one lives but also one’s storage area. Mishneh Torah, Laws of the Murderer and Protecting Life, 11:4 extends the mitzvah of ma’akeh to “any other object of potential danger by which it is likely that a person could be fatally injured.” Rambam broadens the mitzvah even further as encompassing any situation which endangers life, including illness. Thus, the obligation to construct a ma’akeh is a broad requirement to remove dangerous objects from one’s environment, including illness. Hazon Ish Volume 11 Hoshen Mishpat Likutim 20 explains that one can preserve life either by creating a safe environment or by avoiding danger. For example, one may prevent a fall from the roof either by being careful on the roof or by placing a railing on it.

For rare dangers, vigilance is sufficient. Where it is impossible to exercise constant vigilance, one must take additional steps to ensure safety. Because workers cannot remain vigilant about avoiding work-related danger at all times, the general work setting must be safe. Be-Tzel Ha-Hokhmah 4:115 explains that the mitzvah to construct a ma’akeh applies to the workplace because people spend a significant amount of time at work. Indeed, the language that poskim use to determine when one must construct a ma’akeh is “where people are accustomed to do their work,” reflecting the importance of creating a safe work environment. A worker will exercise vigilance to avoid occupational hazards directly related to her job but all other dangers must be removed. For example, a worker must wear goggles and protective gear when using a blowtorch. This fulfills the mitzvah to “take care and guard your spirit” (Devarim 9:4).

For those dangers from which employees cannot be constantly vigilant, such as an open roof or COVID-19 infection, employers have an obligation to construct a ma’akeh. Even with careful masking, hand washing, and social distancing, people can become infected with COVID-19 at work. The employer can fulfill his halakhic obligation to create a COVID-19 safe workplace by encouraging vaccination through education and positive incentives, creating vaccine friendly work policies such as paid leave on the day of vaccination and bringing vaccines to the workplace, and leading by example. But the Halakhah of ma’akeh would also permit and perhaps even obligate a vaccination-or-termination policy to protect employees from our contemporary equivalent of “an object of potential danger, by which it is likely that a person could be fatally injured.”

A number of halakhic authorities have supported a policy requiring workers to undergo COVID-19 vaccination and terminating those who refuse. When asked if an employer who requires his employees to receive COVID-19 vaccinations may demand that they sign a waiver absolving him of any potential danger associated with the vaccine, Eretz Hemdah prefaced their response by saying that based on Shulhan Arukh Orah Hayyim 328:10, which establishes the obligation to adhere to physician’s recommendations, all should follow public health guidelines.[19] It is noteworthy that Eretz Hemdah presents the obligation to follow the guidance of physicians in its introduction, emphasizing the indisputable nature of this principle. This suggests that Halakhah would permit or possibly obligate an employer to require vaccination, especially if physicians, public health organizations, and governmental bodies have mandated it.

Halakhah would allow for legal action against employees who refuse COVID-19 vaccination and then put themselves in situations where they might endanger others. Rav Yaakov Ariel ruled that parents could sue a teacher who refused to be vaccinated and subsequently developed COVID-19, sending his students into quarantine over Purim. He classified the teacher as a rodef (pursuer) but specified that he did not merit the death penalty. The parents could demand compensation for tsa’ar (pain) and injury in the form of lost days of work and learning, isolation from family and friends, and disconnection from the joy of Purim.[20] The teacher could not claim innocence since failure to vaccinate in a timely manner is a crime, especially because teachers had priority for vaccination. Because the teacher had full knowledge that COVID-19 is a contagious disease, his entering the classroom unvaccinated constituted a grievous offense. Rav Ariel called on parents to speak out against teachers who refuse vaccination because the rights of our children to be healthy trump the rights of the individual teacher to infect them and endanger their lives.

How Does Halakhah Approach Policies that Ban the Unvaccinated from Jewish Communal Life?

Proof of COVID-19 immunity might be required not only to fly on an airplane or enter cultural events but also to participate in Jewish communal life. There are several reasons why restricting synagogue attendance to the vaccinated might not be feasible. First, it would require all attendees to register prior to prayers. Second, enforcement of the ban requires placing guards at the synagogue entrance to identify the vaccinated and those recovering from COVID-19. Finally, it would keep children below age 16 for whom the vaccine has not yet been approved from attending, and for many, this is unpalatable.

Does Halakhah permit restricting participation in Jewish communal life to the vaccinated? As noted, Mishneh Torah, Laws of Talmud Torah 6:14 allows excommunication for someone who “has something harmful on his property…” Rambam’s inclusion of the laws of excommunication in the laws of Talmud Torah suggests that bans such as these might apply even at the expense of learning Torah. Rama Yoreh Deah 334:1 rules that the Beit Din has the authority to impose sanctions on someone until he removes a dangerous object. It may prevent his burial and the circumcision of his children, and ban their children from school and their family from synagogue.

There is halakhic precedent for not allowing the unvaccinated to attend synagogue during a pandemic. In November 2018, in response to a measles outbreak, the Agudath Israel wrote, “It is incumbent upon all members of the community to ensure that they and their children receive measles vaccination. Even for those not inclined to vaccinate, this is required of them based on the principle chamira sakanta me’issura. In addition, there is an obligation to be vaccinated based on the mitzvah of ve-nishmartem meod le-nafshotekhem. Nobody has the right to endanger others by not vaccinating their children. This is a violation of lo ta’amod al dam re’ekha. Furthermore, during a time of measles outbreak, exposing others to an unvaccinated individual is equivalent to an act of rodef. We urge all schools, playgroups and shuls to ban any child or adult who has not been vaccinated. This is nothing less than a matter of pikuah nefesh.

Many shuls have already instituted policies that restrict attendance in order to prevent COVID-19 infection, banning the quarantined, those with symptoms of COVID-19, and even those returning from foreign travel or, in the US, a different state. Proof of immunity or vaccination as a requirement to attend shul is a natural extension of these policies. In Deerfield Beach, Florida, when shul members organized a rogue minyan, the board stripped them of any position within the shul, denying them kibbudim, aliyot, and the opportunity to lead the service or give shiurim. These efforts were designed to send a message regarding the importance of complying with safety measures.

Ashkenazi Chief Rabbi of Israel, Rabbi David Lau, suspended a judge who served on the state’s rabbinical conversion court for refusing COVID-19 vaccination, stating, “A judge who does not get vaccinated will not be able to serve in his position and endanger those who come to the court; it is forbidden for a person to damage his own body and all the more so that of someone else.”[21] Rav David Stav, chairman of Tzohar (which provides religious services to and creates dialogue with the broader Israeli population), has restricted all unvaccinated representatives of the organization, including rabbis performing weddings, kallah teachers, and bar mitvah instructors, to interacting on zoom. “G-d forbid that our strong desire to bring good news and family sanctity will spread the disease.”[22] Similarly, Rav Zalman Baruch Melamed, the head of the Beit El Yeshiva, has prohibited unvaccinated avrekhim from attending the Kollel.[23]

Poskim have addressed the halakhic permissibility of vaccination requirements in the context of routine childhood immunizations. Rav Elyashiv has stated that parents have the right to demand that all children attending school receive these vaccinations.[24] Similarly, Rav Yitzchok Zilberstein ruled that school administrators have the authority to restrict admission to the vaccinated.[25] He derives this position from Rama Yoreh Deah 334:6, which suggests that even when children are completely innocent, the Beit Din may punish them for the misdeeds of their parents as a way to pressure the parents to correct those misdeeds. The policy of banning unvaccinated children from school punishes parents who refuse to vaccinate them and protects students from infection.

As unpalatable as we might find policies that ban the unvaccinated from synagogue or schools, Halakhah permits them to promote public safety.

Conclusion

In the last year, the COVID-19 pandemic has subjected the world to the contemporary equivalent of Noah’s flood, forcing us into our metaphorical arks – the safety of our homes – to protect us from the deluge of the virus. When the flood ended, G-d gave Noah seven mitzvot, including the obligation to establish a judicial system to prevent the development of another such catastrophic event. In Laws of Kings 9:14, Rambam limits this commandment to the enforcement of the other six Noahide mitzvot. Ramban, in his commentary on Bereishit 34:13, broadened this to require a legal system that would also adjudicate matters of “theft, abuse, usury, labor relations, damages, loans, business, and the like, just as Israel was commanded to set up laws in these matters.” In modern times, Israeli courts have extended the jurisdiction of our legal system to enforcement of policies encouraging COVID-19 vaccination.[26] May we merit the receding of the waters of our contemporary flood and emerge from our homes to a new COVID-19 reality. In this new reality, several policies, including government mandates to vaccinate, workplace policies of vaccinate-or-terminate, and bans on the unvaccinated from Jewish communal life might be implemented to ensure public safety. Halakhah permits each of these policies. However, it instructs us to begin with education and gentle guidance.


[1] Donald G. McNeil Jr., “How Much Herd Immunity is Enough?New York Times, December 24, 2020.

[2] Mark Osborne, “New York City Offers Fines of $1,000 to 3 People Who Refused to Be Vaccinated Against Measles,” ABC News, April 19, 2019.

[3] National Conference of State Legislators, “States with Religious and Philosophical Exemptions from School Immunization Requirements,” January 29, 2021.

[4] BBC News, “Coronavirus Vaccine: Australia Rules Out Mandatory Immunisations,” August 19, 2020.

[5] DevelopmentAid, “Obligatory Coronavirus Vaccines – What Are Governments Around the World Saying?” June 30, 2020.

[6] For a full discussion of this topic please see Sharon Galper Grossman and Shamai Grossman, “Halakha Approaches the COVID-19 Vaccine,” Tradition Online, October 20, 2020.

[7] Hazon Ish- Laws of Shehitah 2:16.

[8] The High Court of Justice 5073/91. The Israeli Theaters LTD. Against The City Hall of Netanya and Others Judgment (3): 192, 206-207.

[9] J. David Bleich, Contemporary Halakhic Problems: Volume1: (New York: KTAV/YU, 1977), 93.

[10] Nishmat Avraham: Hoshen Mishpat 427.

[11] Asher Bush, “Vaccination in Halakhah and in Practice in the Orthodox Jewish Community,” Hakirah 13 (Spring 2012): 198.

[12] Yuval Cherlow, “Is There a Halakhic Obligation to be Vaccinated Against Corona?” (Hebrew), Shabaton, December 15, 2020.

[13] Minhat Asher 2:121.

[14] Aaron Glatt, et al., “Compelled to Inoculate: May Parents Refuse Vaccinations for Their Children?” Journal of Halachah and Contemporary Society 65 (Spring 2013): 55–72. 

[15] Yale School of Management,Virtual Yale CEO Summit: Finding Common Ground across a Divided Land,” December 15, 2020.

[16] Zev Stub, “Mobileye to Ban Employees Not Vaccinated for Coronavirus,” The Jerusalem Post, February 24, 2021.

[17] Maayan Jaffe-Hoffman, “Coronavirus: 1/1,000 Chance of Contracting COVID-19 If Vaccinated – Study,” The Jerusalem Post, February 17, 2021.

[18] U.S Equal Opportunity Employment Commission, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” December 16, 2020.

[19] Eretz Hemdah – Ask the Rabbi, “Workplace Requirement for Vaccination,” January 15, 2021.

[20] Yaakov Ariel, “Is it Possible to Sue a Teacher Who has Not Been Vaccinated?” (Hebrew), Yeshiva, February 24, 2021.

[21] Jeremy Sharon, “Chief Rabbi Lau Suspends Rabbinical Judge for Refusing COVID Vaccine,” The Jerusalem Post, February 17, 2021.

[22] Kipah News, “Chairman of the Tzohar Rabbinic Organization: We Will Not Send Unvaccinated Rabbis to Perform Marriages” (Hebrew), March 5, 2021.

[23] Arutz 7, “Rabbi Zalman Melamed: Avreikhim Who Will Not be Vaccinated Will Need to Find Another Kollel” (Hebrew), March 2, 2021.

[24] Asher Bush, “Vaccination in Halakhah,” 200.

[25] R. Yitzchok Zilberstein, “Letters: Vaccination,” Journal of Halachah and Contemporary Society 69 (Spring 2015): 96–102.

[26] An Israeli court recently ruled in favor of a school which banned a teaching assistant who refused to provide proof of vaccination. See Reuters Staff, “Israeli Court Upholds School’s Barring of COVID Refusenik Teacher,Reuters, March 12, 2021.

Sharon Galper Grossman, MD, MPh, is a radiation oncologist and former faculty member of Harvard Medical School where she also obtained a Masters in Public Health. She is a graduate of the Morot L’Halakha program for women’s advanced halakha learning at Matan Hasharon. She writes and lectures on women’s health and halakha and teaches for Matan, Machon Puah and the Eden Center where she is the director of community health programming. Shamai A Grossman, MD, MS, is vice chair for health care quality, Harvard Medical Faculty Physicians and Beth Israel Deaconess Medical Center, associate professor of medicine and emergency medicine at Harvard Medical School and a visiting professor at Sharrei Tzedek Medical Center. He has semicha from Yeshiva University and a master’s degree in medieval Jewish history. He is the author of over 200 peer reviewed publications and 4 books including Ethics in Emergency Medicine.