Your questions about the COVID-19 employer vaccine mandate, answered
On September 9, President Joe Biden announced a series of steps to combat the coronavirus pandemic, including a vaccine mandate for employers with more than 100 workers.
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Rather than mandating vaccines for individuals, Biden asked the Occupational Safety and Health Administration, or OSHA, to craft an Emergency Temporary Standard to combat a public health emergency affecting the workplace.
Emergency Temporary Standards override the often lengthy formal rulemaking process, and instead address urgent dangers in the workplace. ETSs are also rare: Before the pandemic, the most recent emergency standard was in 1983, when OSHA under President Ronald Reagan issued a rule meant to prevent overexposure to asbestos.
The details of the new ETS have not yet been made public. But Biden asked OSHA to craft a rule that would require companies with more than 100 workers to require either COVID-19 vaccination for their employees, or regular COVID-19 testing for employees who refuse to get vaccinated.. The same rules will apply to federal contractors — companies that have contracts with the Department of Defense or other agencies — regardless of their size. The rule is expected to affect more than 80 million workers.
There may be some exemptions for medical or religious reasons, but those specifics are not yet known.
“I would predict that the regulation that we see produced by OSHA in the next couple of weeks or perhaps month or so will be substantially more nuanced,” Brian Abramson, Florida International University College of Law adjunct professor of vaccine law, told me in an interview. “We can expect a lengthy and fairly intricate set of rules that will spell out a lot of the things that are left on the floor or undecided.”
Among those things OSHA will need to clarify are what counts as over 100 employees, whether a positive antibody test can exempt a worker from the requirement, and what an unvaccinated worker can do if there is a shortage of COVID tests.
“I do think that the implementation will be narrower than the very broad language that the Biden administration’s proposal,” Abramson said. “There are certainly situations where you have an employee that’s working from home, they're entirely remote and they’re not interacting with other people. And an argument could be made that no purpose is served by requiring that employee to be vaccinated or produce weekly tests.”
Can He Do That?
Short answer: Probably, yes. As far back as 1905, the Supreme Court held that state governments could require every citizen to take a smallpox vaccine or face a $5 fine. Fun fact: Because of inflation, that would be more than $130 in today’s dollars. And the government routinely requires vaccinations for immigrants coming into the U.S., students and people serving in the military.
But the Biden rule is actually less controversial than that 1905 decision. Instead of mandating vaccines for individuals, Biden is using rulemaking powers to put the onus on employers. This way, workers will also get paid time off to get vaccinated, and to recover if they experience any of the short-term effects of vaccination.
Plus, instead of facing a fine if you don’t comply, you’ll have the option to provide a weekly negative COVID test to your employer, and quarantine at home if the test comes back positive.
We will likely see legal challenges to the new rule, Abramson said, likely over whether the rule fits within the bounds of the Interstate Commerce Clause, which gives OSHA its authority, and whether COVID-19 is a grave enough threat to warrant this kind of emergency standard.
“We might see a challenge as to whether implementing such a mandate is within what the intent of Congress was when the established OSHA back in the 1970s, but there are court cases from early on in OSHA’s existence which show that Congress intended for OSHA to have the maximum power conceivable for an agency for the purpose of protecting employee safety and health.”
Didn’t Biden Say He Was Against Vaccine Mandates Earlier?
Yes. In a December 2020 press conference, then-President elect Biden said he wanted to encourage personal responsibility when it came to vaccines, but didn’t want to mandate them.
It was a position he reversed when he issued the September 9 call to OSHA, saying his patience was wearing thin with those who had not yet chosen to be vaccinated. Around the same time, models showed that some 16,000 deaths could have been prevented if more people voluntarily got the shot.
“Many of us are frustrated with the nearly 80 million Americans who are still not vaccinated, even though the vaccine is safe, effective and free,” Biden said.
How Will It Be Enforced?
The government won’t directly enforce the mandate for individuals. Instead, employers could face a $14,000-per-violation fine if employees do not get vaccinated or present weekly negative COVID test results. And because employment is largely at-will in the U.S., meaning you can be let go for pretty much any reason, employers may choose to fire people instead of paying OSHA’s hefty fine.
Who Isn’t Covered?
Employers with fewer than 100 employees won’t be covered by the rule. They may choose to follow it, but they won’t have federal backing when it comes to reimbursements for paid time off.
Also not covered: the self-employed and an estimated 55 million gig workers who are part of the American economy.
“Gig workers are in a precarious position in so many different ways, not least because they’re not covered by most labor and employment laws,” said Erin Hatton, an associate professor of sociology at the University of Buffalo SUNY and an expert in the gig economy. “So this new mandate, but also the right to organize and bargain collectively, the right to a minimum wage and overtime pay, the right to safe working conditions, they’re exempt from most of these laws because they're not legally classified as employees.”
Vaccine law professor Abramson said given the number of gig workers in the country, Congress could establish a special fund to compensate workers who might not get the vaccine because they can’t afford to take time off if they have vaccine side effects, but he hasn’t seen such an idea seriously floated.
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Correction: A previous version of this story falsely stated that the 1905 Supreme Court case Jacobson v. Massashusetts pertained to federal mandates. The case pertained to state mandates. We regret the error.