On Sept. 9, President Biden announced a six-step plan in the fight against the COVID-19 pandemic requiring most federal workers to get vaccinated. Biden is also requiring employers with at least 100 workers to get vaccinated or, alternatively, get tested weekly. Are these requirements legal? Robert Field, professor of law and public health at Drexel University, explains.
JOE BIDEN: My job as president is to protect all Americans.
ROBERT FIELD: He's kind of building the momentum. Federal workers, people within the executive branch, health care workers, and the latest proposal is for workers at any company that has more than 100 employees.
OSHA is the Occupational Safety and Health Administration, it is responsible for ensuring that all-American workers have a safe and healthy workplace. And we don't have the final rule yet, it's just their own concept is that companies that meet the criteria have to either mandate vaccination or regular testing of employees who are not vaccinated or can't prove that they've been vaccinated.
So what are the penalties for this? In theory, there are penalties of fines of up to around $14,000 per violation and if that violation is each employee who shows up unvaccinated or untested, that could add up to a lot of money.
I think that the mandates are clearly constitutional. The one that covers federal workers, that's clearly within the president's power to control the executive branch and the people who work for it.
In terms of health care organizations, his hook there is funding through Medicare and Medicaid, and they can set requirements for what a health care facility does to ensure the safety of patients and staff. So, I think he's on very clear footing there.
In terms of the new mandate, the one that he has proposed for private sector workers, that would rely on a 1905 Supreme Court case involving vaccination in Massachusetts against smallpox in the face of a major epidemic, and the Supreme Court resoundingly upheld that mandate. Now, there are some differences that was localized but it was pretty clear from that ruling that vaccination in the face of a disease threat is allowed under the constitution.
You have a lot of freedom in our country, fortunately, but you don't have the freedom to put other people in danger. The one remaining issue is OSHA's authority to issue an emergency standard. Does the present situation meet the criteria for a medical national emergency? OSHA has only tried about 10 times in its history to issue such standards, almost half of them have, in fact, been struck down.
But the Biden administration has a pretty strong argument that a pandemic that's killed almost 700,000 Americans and that is now killing almost 2000 a day, is a national emergency that qualifies under OSHA's authority. Another issue that Biden will face which is the logistics, OSHA is severely understaffed, it's always been understaffed but it's staffing was cut back even further during the previous administration.
So, how is he going to enforce it? He doesn't have enough workers to check every workspace in the country. For all of Biden's mandates, there are exceptions for medical risks, if you have a particular medical risk from the vaccine, and for religious exemptions.
But I think it's a bit of a misnomer to call it a vaccine mandate, it's an option. You don't have to be vaccinated if you submit to weekly testing. It will probably be issued within the next 30 days. Once it's issued, it's going to be an emergency regulation, so we can expect that it will take effect immediately.
Private employers can set unilaterally conditions on employment, except for a few circumstances. They can't be discriminatory, they can't violate a union contract, they can't violate public policy but other than that, the doctrine of at will employment would apply. At will meaning you as the worker can leave when you want but the employer can terminate your employment whenever they want.
So a condition like vaccination could be added, the employer would have to argue that it was reasonable, I don't think that should be a heavy lift. So private employers can do this on their own, and many have and many large corporations have. The full approval of the Pfizer vaccine makes it easier for a private company to mandate vaccination for its workers, customers, whatever.
Since this is a government action, it would be on firmer legal ground. Do the HIPAA laws apply to this? Generally no, the HIPAA law applies to only three categories of organizations, health care providers, insurance companies, and insurance data clearinghouses. So, unless the employer is treating the employee with clinical care, HIPAA would not apply.
It's important to point out that under the Biden rules and under most of the mandates that are out there, if you really object for whatever reason, you can go the testing route. It's inconvenient but it's not invasive, it's not risky. One of the questions to be resolved is who will pay for it.
Will workers have to bear that burden as a cost for refusing vaccination? Will the employers have to bear that burden? My guess is that that would instill some pushback. Or will the government cover the cost? Since the government is covering the cost of the vaccination, I would think it was reasonable for the government to pay the cost of the extra testing.
- What is your message to Republicans who are calling your vaccine requirements an overreach? Who are threatening to challenge it in court?
JOE BIDEN: Have at it.
ROBERT FIELD: Every other piece of COVID and our reaction to it has generated lawsuits and this is perhaps the most controversial piece. So I'm sure he expected there to be lawsuits, the question is going to be what's the public pushback? Polls show that a majority of the American public supports COVID vaccine mandates but there's a substantial minority that is passionately opposed to them.
So this is going to further stir up the partisan divide. Clearly Biden has decided that it's worth the risk, he had originally said he didn't want any federal mandates, I think given what's happened with the Delta variant, he has decided that he really has no choice.