Biden’s bold COVID vaccine mandates: Who’s affected, are they legal?

President Joe Biden announced the federal government’s aggressive new approach to fight the COVID-19 pandemic on Thursday, which include new vaccine rules that the White House says will affect two-third of the American workforce. 

The strategy involves six steps all aimed at boosting the US vaccination rate, which fell over the summer as a new wave fueled by the Delta variant plunged health care systems in areas with largely unvaccinated populations back into disarray.

About 73.4 percent of Americans over the age of 12 have at least one vaccine dose, but less than 63 percent are fully vaccinated – far short of the threshold to reach herd immunity. 

Biden’s approach includes mandating all federal employees and federal contractors get vaccinated, requiring vaccinations for more than 17 million healthcare workers at Medicare and Medicaid-participating facilities and requiring all businesses with 100 or more employees to tell their workers to get vaccinated or submit to weekly COVID testing.

But the unprecedented nature of the announcement left many confused on how vaccination requirements would be implemented on such a wide scale.

Press Secretary Jen Psaki did little on Friday to unravel those mysteries at her daily White House briefing.

Asked about how otherwise expensive testing equipment would be funded and whether the White House would weigh in on a timeline for private businesses to enact the rule, she didn’t provide any direct answers but rather said there were plans ready for the government to aid and assist employers.

Who is affected?

Biden’s vaccine mandate covers roughly 100 million Americans. 

In addition to the 17 million health care workers, about 80 million private sector employees will have to face the choice of getting vaccinated or taking a weekly COVID test.

The president’s mandate for federal employees comes on top of existing vaccine mandates within the Department of Defense, Department of Veterans Affairs and the Indian Health Service, which cover 2.5 million service members and workers according to the White House. 

The federal government employs 2.1 million ‘civilian workers,’ according to a June report from the Office of Management and Budget. They all now fall under Biden’s order – likely in addition to millions more contractors. 

Federal employees include all executive branch workers like those in Cabinet departments, the EPA and CIA. The White House also clarified that postal workers are included.

Previously, federal workers and contractors not working remotely had the choice between vaccination or regular testing. Biden’s Thursday announcement eliminates the option. 

The rate of COVID vaccinations slowed down going into summer, sending the White House into a frenzy looking for ways to encourage people to get the shot

The rate of COVID vaccinations slowed down going into summer, sending the White House into a frenzy looking for ways to encourage people to get the shot

The slowdown in vaccinations coincided with a new surge in coronavirus infections, chiefly fueled by the highly-contagious Delta variant

The slowdown in vaccinations coincided with a new surge in coronavirus infections, chiefly fueled by the highly-contagious Delta variant

How will it be enforced?

The private sector rule for companies with more than 100 employees will be enforced by the Occupational Safety and Health Administration (OSHA), a regulatory arm of the Labor Department. 

Biden ordered the agency to implement an Emergency Temporary Standard that would penalize companies that don’t comply up to $14,000.

However the emergency rule is vulnerable to legal challenges in federal court, which a number of Republican governors have already threatened to do.

The emergency rule can be in effect for a six month window while a more formally-reviewed measure can take its place. 

Because there’s no national system in place to track vaccination status, enforcement will likely depend on employees reporting violations to OSHA. 

Federal workers who fail to get the shot within 75 days can face disciplinary action, which White House Press Secretary Jen Psaki warned Thursday rises to termination. 

‘Hopefully it doesn’t come to that,’ she said at her daily news briefing.

She added the rule will likely mean full two-shot vaccination but it remains unclear if that’s certain. 

Who is not affected?

Private businesses that employ less than 100 people are exempt from Biden’s rule, though the White House has signaled strong support for private sector vaccine mandates.

Workers not under OSHA protections also can’t be affected. According to the agency’s site that includes people who are self-employed and people in industries whose hazards are regulated by another federal agency like the Mine Safety and Heath Administration or the Department of Energy – though the latter now falls under Biden’s order for federal employees.

The mandate for federal workers does not extend to non-executive branch workers like members of Congress or judicial employees. 

Congressional staff are also exempt. 

It’s also not clear if workers seeking religious or medical exemptions would be successful in doing so. 

Have the mandates started?

The White House said OSHA will likely issue a rule ‘in the coming weeks.’ 

While implementation could be guided by existing timelines used by public and private sector businesses, which could stretch over months, the nature of an emergency temporary standard would enable it to go into effect as soon as possible.

White House Press Secretary Jen Psaki didn’t provide a timeline when asked at Friday’s daily briefing but said ‘every resource in the federal government’ would be used ‘to get this going rapidly.’ 

Federal employees under Biden’s new rule now have 75 days to get vaccinated or face disciplinary action including warnings, suspension and even possible termination.

It wasn’t immediately clear if federal workers must get both shots within the 75 day window.

Biden directing OSHA to use its Emergency Temporary Standard for his vaccine order will affect more than 80 million workers

 What is OSHA?

The Occupational Safety and Health Administration was created by President Richard Nixon under the Occupational Safety and Health Act of 1970. 

OSHA has jurisdiction over most private and public workplaces across the country, but some states have their own OSHA-approved regulatory agencies.

The agency regulates health and safety standards in the workplace. To enforce that it’s able to conduct unannounced inspections ensuring those standards are met.   

Since it was created workplace deaths fell dramatically by nearly 63 percent, according to OSHA. An estimated 14,000 workers – or 38 per day – were killed on the job in 1970. But 2018 the number fell to 5,250, despite a doubling of the total US workforce.

OSHA’s process for enacting new workplace standards includes consulting a number of relevant advisory committees linked to the Labor and Heath and Human Services Departments, as well as consulting business owners and allowing a window for public input, at least 30 days but ‘usually 60 days or more.’ 

Businesses in states with their own OSHA-approved agencies can ask for a ‘variance’ in the rule if they can’t comply by the effective date.

If the state is under federal OSHA jurisdiction then the agency will have to work with the state to determine if the exception can be granted 

What is an Emergency Temporary Standard (ETS)?  

An ETS allows OSHA to bypass the consultation process and public input window if it determines ‘workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them.’

Emergency standards can take effect immediately but only stay in effect until replaced by a permanent standard.

That proposed permanent standard must go through the regular bureaucratic channels and be decided upon within six months.

During that time the temporary rule can be challenged in an appropriate federal court. 

OSHA can issue ‘temporary variance’ rules to employers who prove they can’t comply with a regulation in time, but they have to demonstrate they are taking all the necessary and possible steps to protect workers, and show a roadmap toward compliance.

Source: OSHA 

The Labor Department regulatory agency has the authority to issue an 'emergency temporary standard' if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it

The Labor Department regulatory agency has the authority to issue an ’emergency temporary standard’ if it can prove workers are exposed to a grave danger and the rule is deemed necessary to address it

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Is it legal for employers and OSHA to enforce this?

A number of groups are already gearing up challenges against the Biden administration over the new vaccine rules.

They include the Republican National Committee and several governors like the heads of Texas, Florida and Georgia.

The legality of Biden’s OSHA order hinges on a federal court deciding whether he correctly interpreted the guidelines of an emergency temporary standard.

An ETS can be ordered in the event ‘workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them,’ according to OSHA.

Biden breaks his promise not to mandate vaccines 

President Joe Biden has been accused of flip-flopping after retreating from his earlier vows that the federal government would not mandate COVID-19 vaccines.

Biden on Thursday announced sweeping new federal vaccine mandates affecting as many as 100 million Americans, sharply denouncing those who have not yet received the shots.

The new rules requires workers at companies with more than 100 employees to get vaccinated or tested weekly, and orders federal employees and healthcare workers to get the shots, with no testing alternative. 

It was a marked change in position for the White House, perhaps reflecting the administration’s desperation as the Delta variant fuels a huge surge in infections across the country.

In December, Biden said at a press conference in Wilmington, Delaware when asked asked about a federal vaccine mandate: 

‘I don’t think it should be mandatory, I wouldn’t demand it to be mandatory, but I would do everything in my power…as president of the United States to convince people to do the right thing.’ 

The White House doubled down on this stance as recently as July, when Press Secretary Jen Psaki said it was ‘not the role of the federal government’ to require vaccines. 

‘That is the role that institutions, private-sector entities, and others may take. That certainly is appropriate,’ said Psaki. 

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A judge would have to rule on whether the COVID pandemic is a sufficiently ‘grave danger’ to warrant something as unprecedented as this measure, and decide if it’s something businesses nationwide could feasibly carry out.

But the last ETS implemented was also during the pandemic, when in June OSHA invoked an emergency order to protect health care workers from COVID by mandating workplaces like hospitals and nursing homes to draft a plan on keeping employees safe, improving ventilation, supply adequate PPE and implement social distancing measures or build barriers where that’s not possible. 

In May the Equal Employment Opportunity Commission, which polices fairness in the workplace, allowed employers to mandate on-site employees to get vaccinated within the bounds of civil rights and disability protections. 

But many large companies, particularly those based in big cities, still allow employees to work remotely. It’s unclear whether off-site employees will be able to challenge the rule.  

Is the mandate for federal workers legal? 

The Justice Department announced in July that federal agencies and private businesses are allowed by US law to require vaccinations.  

Biden, as the head of the executive branch, has control over all the branch’s Cabinet and agency workplaces.

But one lawyer told DailyMail.com that federal contractors working off government property could challenge the rule. 

Steve Cave, an attorney at King & Spalding who represents government contractors, said the president will be seen as having greater authority over contractors sending employees to federal property, while contractors that do not perform work on government property will be more motivated to challenge the order.

Cave said there is precedent for Biden´s order. Former President Donald Trump banned from use by US government contractors some Chinese technology which so far has survived challenges, he said.

Biden previously changed rules for federal contractors in April, when he issued an executive order raising government contract workers’ minimum wage to $15.  

What about medical privacy laws? 

The Health Insurance Portability and Accountability Act, commonly known as HIPAA laws, make it illegal for doctors or other healthcare professionals to share patients’ health information without their explicit permission. 

But it doesn’t prevent a boss or human resources department from asking an employee directly about their vaccination status. It’s also not illegal for them to ask that employee to provide proof they were vaccinated.   

Has a vaccine mandate been challenged before?

A 1905 Supreme Court case, Jacobson v. Massachusetts, challenged a smallpox vaccine mandate in Cambridge, Massachusetts. 

Henning Jacobson challenged a smallpox vaccine mandate in Cambridge, MA in 1905

Henning Jacobson challenged a smallpox vaccine mandate in Cambridge, MA in 1905

The mandate noted that smallpox cases were increasing in the city and vaccines were ‘necessary for the speedy extermination of the disease,’ according to legal documents.

Defendant Henning Jacobson pleaded ‘not guilty’ and said the mandate violated his 14th Amendment rights under the Constitution.  

But the Supreme Court ruled in favor of the state, arguing that individual liberty can be under ‘restraint’ in a case where the regulation was ‘necessary in order to protect the public health and secure the public safety.’ 

Biden’s mandate is less restrictive than the aforementioned rule because it allows workers to opt out of vaccination and instead get weekly COVID tests.

Another smallpox vaccine mandate came under the Supreme Court in 1922’s Zucht v. King. 

A child in San Antonio, Texas named Rosalyn Zucht was excluded from public and private schools over her refusal to comply with the city’s smallpox vaccine mandate. 

Zucht’s suit claimed there was no emergency requirement vaccination and, like Jacobson, argued it infringed on her individual liberty.

But the Supreme Court ruled in favor of the mandate again, finding that city officials acted in the best interest of public health. 

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