Will Biden's vaccine mandate survive in the courts?

Who knows?

Last week, President Biden issued several directives concerning mandatory vaccination. The media reports are of wildly varying accuracy, and the political hype is impressive, to say the least. 

The directives continue a long tradition of using employers to enforce government mandates of all sorts. But at least they don’t expressly use private litigation as the means for enforcement.  

Federal government employees. One Executive Order effectively requires vaccination for federal government employees “with exceptions only as required by law.” The President probably has authority to do this as the employer of federal employees. Whether unions representing federal employees can meaningfully object is an open question. I suspect not, although I am not fully knowledgeable about the subject. 

Employees of some federal contractors. Another Executive Order requires renewed or new contracts with the federal government to include clauses requiring employees to be vaccinated. This E.O. applies only to renewals or new contracts, entered into on or after October 15. Whether the President has authority to issue this mandate depends on how the courts interpret statutes granting the executive branch authority to enter contracts with vendors. That authority historically has been broadly interpreted. The President probably will be held to have this authority, although we should expect conflicting judicial decisions as the matter works through the courts. For more information about the federal contractor mandate, please see Cara Crotty’s blog post that was published on Friday. (Cara is the chair of our Affirmative Action and OFCCP Compliance Practice Group.) 

All employers with 100 or more employees. As part of his “Path Out of the Pandemic” COVID-19 Action Plan, the President has directed the Occupational Safety and Health Administration to begin work on an Emergency Temporary Standard that would apply to all employers with 100 or more employees. The proposed ETS would mandate that these employers require employees to be vaccinated or submit to weekly testing for COVID-19. The Action Plan also indicates that these employers will be required to pay employees for time they spend getting vaccinated and recovering from side effects of the vaccine. 

For more information about this part of the President’s initiative, please see the first section of this bulletin, which was written by Bill Principe, co-chair of our Workplace Safety Practice Group, and published on Friday.

We don’t know what OSHA will actually issue or how long it will take for OSHA to act. We expect court challenges as to whether OSHA has the authority to issue such a rule without following the usual processes under the Administrative Procedure Act. We can expect conflicting judicial decisions on that topic depending on what OSHA issues and how OSHA supports whatever it issues. 

Health care workers. Finally, the Action Plan says that the Centers for Medicare & Medicaid Services will require health care providers who receive Medicare or Medicaid funds to require employees and volunteers to be vaccinated. According to the Action Plan, this will apply to “nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care.” Once again, we don’t know whether the CMS has the authority to do this.

There has been a rapid escalation in legal actions challenging executive branch actions. The plaintiffs in these lawsuits argue that the agencies do not have the congressional authority to issue their rules, and some courts have been receptive to their arguments. In the recent Supreme Court case striking down the eviction moratorium issued by the Centers for Disease Control and Prevention, the majority opinion said, “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” (Internal quotations and citations omitted.)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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