COVID-19 Vaccination Mandate Raises Questions for Employers and Legal Scholars

Here’s what you should know about how your company will be affected:

The Mandate

Biden announced on Sept. 9, 2021, that federal workers — including White House staff, federal agencies, and armed services — must take the COVID-19 vaccine. They cannot opt out and instead receive weekly tests. Biden also said anyone who wants to work with the federal government must get vaccinated, including health care workers at facilities receiving federal funding through Medicaid and Medicare.

The Departments of Defense and Veterans Affairs, the Indian Health Service, and the National Institute of Health have announced they will complete their previously announced mandate to require that the over 2.5 million employees under their jurisdictions get vaccinated.

The Biden mandate also requires businesses with 100 or more employees to ensure all employees get vaccinated or get tested if unvaccinated once a week. The delta variant of the coronavirus has led to a spike in hospitalizations and deaths — mostly in unvaccinated populations — and the new directives are part of Biden’s plan responding to the surge. Even though the U.S. Centers for Disease Control and Prevention report that more than 63% of Americans have received at least one COVID-19 dose, vaccination rates have slowed. About 54.5% of the U.S. population is now fully vaccinated.

Implementation

The Department of Labor’s Occupational Safety and Health Administration is in charge of
the rule. The rule is expected to affect 80 million workers in the private sector; 50,000 health care providers; and 17 million health care workers. Although the vaccination rules have not been finalized, the following conditions will be mandated:

• Religious and medical exemptions are allowed.
• OSHA will require large employers to provide paid time off for workers to get vaccinated.
• Companies failing to comply will face penalties up to $14,000 per violation. Employees who refuse to get vaccinated can be fired.
• The Labor Department’s Occupational Safety and Health Administration will enforce the fine.
• Individual federal workers and contractors who do not comply will go through agency- based counseling and disciplinary action and can be fired for refusing the vaccine without a proper exemption.

The Biden administration is also pursuing a booster vaccine regimen for those who have already received shots.

Exemptions

Biden’s sweeping employee vaccine mandate does not affect everyone. These groups are exempted:

• Employees who work for companies with 99 or fewer employees.
• Members of Congress, employees who work for Congress or employees in the federal
  court system.
• Illegal immigrants crossing the border. About 30% of immigrants held at federal detention facilities are refusing to be vaccinated and they have the option to refuse. Border Patrol estimates more than 18% of migrant families who recently crossed the border tested positive for COVID before being released.

Those in Support

Joe Biden stressed that getting the vaccination is not about “freedom or personal choice.”

“It’s about protecting yourself and those around you, the people you work with, the people you care about, the people you love. My job as president is to protect all Americans,” he said. Many Americans — including employers, agree. Companies such as United Airlines, Tyson Foods, Disney, and Fox News have already implemented vaccine mandates.

Supporters say that not only are vaccine mandates needed to keep the U.S. population safe, but they also are constitutional. Erwin Chemerinsky, Dean of Berkeley Law School, and constitutional law professor said there is no problem with requiring people be vaccinated. He said the issue was settled by the Supreme Court in 1905 in the Jacobson v. Massachusetts case. The court’s decision raised questions about the power of state government to protect the public’s health and the Constitution’s protection of personal liberty.

There is an OSHA Mandate that requires employers with more than 100 employees to provide paid time off for workers to get vaccinated or to recover if they suffer reactions post-vaccination. Sid Shapiro, OSHA expert and Wake Forest University Law Professor, said the issue is whether the government has the authority under some statute to order employers to require vaccination or weekly testing. If that authority does exist, Shapiro said it would be constitutional because Congress regulates interstate commerce.

Those Opposed

Not everyone believes the federal government has the right to mandate the vaccinations. Soon after Biden announced his plans, the hashtag #DoNotComply spread on Twitter.

Earlier this year, Biden’s White House Press Secretary Jen Psaki said implementing a vaccine mandate is not the role of the federal government. Her remark caused many to question the constitutionality of the mandate. Newsweek has reported that President Biden himself rejected the idea of mandatory vaccines on December 4, 2020, while speaking in Wilmington, DE, following his remarks on the November 2020 jobs report.

Republican Rep. Elise Stefanik (R-N.Y.) called it “unconstitutional” and “an authoritarian power grab” in a statement released immediately after Biden’s speech. She added that the American people should have the freedom to make the best decisions for their families rather than accepting forced illegal mandates from a power-hungry government.

Several Republican states, all in favor of the vaccination, are pushing back against mask and vaccination mandates as unconstitutional. Alabama and Arizona are filing lawsuits to lift the Biden mandate.

Some companies are pushing back on the mandate as an assault on personal liberty. Company representatives for the conservative Daily Wire have publicly supported the vaccine but have threatened legal action against the mandate.

Others wonder about the soundness of Biden’s reasoning. Biden has claimed that the unvaccinated need to get vaccinated to protect the vaccinated, while at the same time saying the vaccinated are protected. Notably, Congress itself is exempted from complying with Biden’s Executive Order due to separation powers in the government, but Biden’s order does impact employees of the Executive Branch.

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