Sep 13, 2021 • Andrew Leonatti; FINDLAW/BLOGS/LAW AND DAILY LIFE
Understanding Biden’s New Vaccine Mandate Announcement
The moment that many eagerly awaited — or feared — arrived last week. In a closely watched address, President Joe Biden announced a sweeping new expansion of COVID-19 vaccine mandates.
The plan, which has a goal of covering about two-thirds of all American workers, involves using existing regulatory authority and not relying on Congress to pass any new laws. As expected, the announcement quickly drew the ire of people opposed to getting the vaccine and those philosophically opposed to vaccine mandates and presidential overreach.
Who Does the Plan Cover?
The plan calls for three broad categories of workers — both public and private — to get vaccinated:
- All federal employees (except those employed by Congress or the courts), contractors who work with the federal government, and teachers and staff of Head Start, Early Head Start, Department of Defense, and Bureau of Indian Education schools
- Health care employees who work at hospitals, nursing homes, and other health care organizations that accept Medicare and Medicaid funding
- All workers at businesses that employ 100 or more people
While many people in these categories are already fully vaccinated, the three classes of people cover approximately 100 million American workers.
Can the President Really Order This?
There is little dispute that Biden has the authority via executive order to order federal employees and contractors who work with the federal government to get vaccinated or face discipline.
However, a large portion of career federal employees are in a union. In a statement, American Federation of Government Employees President Everett Kelley said the union expects to bargain over the implementation.
For health care workers, the Centers for Medicare and Medicaid Services is developing a regulation that it expects to issue in October.
Regulation Covering Private Employees Will Be Contentious
As for any regulations requiring vaccination for private-sector employees, there will most certainly be legal fireworks.
The White House, Department of Labor, and Occupational Safety and Health Administration (OSHA) are claiming authority under the Occupational Health and Safety Act of 1970 to protect employees in the workplace by requiring COVID-19 vaccination or submitting to weekly testing.
“Having a vaccinated workforce is an essential component of having a safe and healthy workplace,” said Drexel University Robert Field. “Being exposed to a potentially deadly virus is neither safe nor healthy. So OSHA would have that authority.”
This, however, would be the first time the government uses the Occupational Health and Safety Act to require vaccinations. The law allows for the issuance of emergency regulations if the government can prove that workers face a “grave danger” to health and safety.
Several Republican and libertarian-leaning groups quickly promised to challenge any regulation from OSHA in court. The conservative New Civil Liberties Alliance argued that the vaccine plan “vastly exceeds the powers the U.S. Constitution allots the executive branch.”
What Should You Do?
If you, like, many Americans, work at a company with more than 100 employees, and you have not received the COVID-19 vaccine, it may be wise to start making plans to get it.
In conjunction with the vaccination regulation, OSHA is also issuing a regulation requiring your employer to give you paid time off to both get the vaccination and recover if you feel ill after getting the shot.
If the regulations are issued, OSHA will issue fines against businesses that fail to enforce them. That means your employer will likely lean hard on you to comply.
If you have a disability that prevents you from getting one of the three vaccines, the Americans with Disabilities Act (ADA) does protect you. There are also religious exemptions, but don’t be surprised if your boss says that required working from home is a “reasonable accommodation” to your objections.
It will take weeks for any regulations to be issued, so you do not have to rush out the door if you don’t want to.