Vaccine Mandates in the United States: Multi-level Actors and Rights in Tension: Federal Government Mandates (Part III)

by | Feb 3, 2022

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About Anne Marie Lofaso

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at West Virginia University College of Law, specializing in labor law, jurisprudence, and constitutional law. She is the Vice President of the West Virginia Advisory Committee to the United States Commission on Civil Rights. She received her D.Phil. in law from Oxford under the supervision of Sandra Fredman.

Image description: Two COVID vaccine vials. 

State government vaccine mandates raise complex legal and ethical questions, some of which are discussed in Part II of this series. But these complications pale in comparison with those raised by President Biden’s mandates, one of which affects the employees of private employers and the other which impacts those who work for facilities that accept Medicaid and Medicare funding. This blog looks at both mandates and also an Executive Order directing federal employees to be vaccinated.

In September 2021, as part his COVID-19 Plan, President Biden asked the United States Department of Labor (DOL) to require large employers to impose a vaccine mandate on their workforces. Two months later, DOL’s Occupational Health and Safety Administration (OSHA) promulgated regulations requiring large employers (100 or more employees) to “develop, implement, and enforce a mandatory COVID–19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID–19 testing and wear a face covering at work in lieu of vaccination.”

Most of the regulations were due to go into effect on January 10, 2022, but in National Federation of Independent Business v. Department of Labor, OSHA, the Supreme Court (6–3) enjoined this vax-or-test rule pending a decision on the merits. The Court explained that applicants for the stay were likely to succeed on the merits of their claim because, in their view, “the Secretary lacked authority to impose the mandate,” which “ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense”. In the majority’s view, this exercise of federal power is a “significant encroachment into the lives—and health—of a vast number of employees”. Simply put, OSHA exceeded the authority that Congress granted it under the Occupational Health and Safety Act (OSH Act), which “empowers the Secretary to set workplace safety standards, not broad public health measures”. By contrast, the dissent concluded that OSH Act empowers OSHA to issue these temporary emergency orders because the coronavirus poses a “grave danger” to employees. On 25 January, the Biden Administration withdrew its vax-or-test regulation.

The difference between the majority and the dissent’s view of OSHA’s authority is narrow but significant. The majority agrees that OSHA can regulate specific risks associated with COVID-19. OSHA cannot, however, “regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock” because that “would significantly expand OSHA’s regulatory authority without clear congressional authorization”. The dissent would have permitted such broad powers given the dangers COVID-19 poses to our society.

On the same day, in Biden v. Missouri, the Supreme Court (5–4) stayed the lower court’s order enjoining a federal regulation making Medicare and Medicaid funding contingent on healthcare facilities mandating that their staff be vaccinated against COVID-19 unless exempt for medical or religious reasons. Two justices, Chief Justice Roberts and Justice Kavanaugh, flipped sides to create the majority coalition. The majority concluded that the federal agency in question, Health and Human Services (HHS) was authorised to make federal funding contingent on vaccinating staff because the HHS Secretary has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged”. The dissent would have kept the stay intact on grounds that the federal government was not statutorily authorised to issue this regulation and, even if it were, the regulation was promulgated in a procedurally deficient manner.

The federal vaccine mandate is legally complex for a variety of reasons. Under U.S.-brand federalism, it is generally not the federal government’s role to impose vaccine requirements on its citizens because the federal government is a government of limited powers as enumerated in Article I of the U.S. Constitution. Vaccination is much more within the state’s police powers. However, the Biden administration attempts to dodge this problem by recasting a public health problem as a workplace issue. This circumvention strategy failed in NFIB v. OSHA because the Biden Administration could not convince enough conservative justices, who tend to favor a small federal government, that Congress intended OSHA’s reach to be so broad. By contrast, the strategy succeeded in Biden v. Missouri in part because “healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting”.

A federal vaccine mandate is further complicated by the government’s dual role as regulator and market player. The Court’s decisions in NFIB v. OSHA and Biden v. Missouri discuss the federal government’s role as a regulator. They say nothing about whether the government as employer or contractor can mandate a vaccine requirement. In September 2021, President Biden issued an Executive Order requiring government employees to be vaccinated, subject to certain exceptions. However, a single federal judge in Texas has blocked the federal employee mandate, concluding that the President has exceeded his authority in mandating that his workforce be vaccinated without Congressional approval. Accordingly, this judge raised separation-of-powers concerns over a federal employee vaccine mandate. Although the Administration will appeal this decision, the Executive Order has already resulted in a 93 percent vaccination rate among federal workers and 98 percent compliance with the Order, including those seeking medical or religious exemptions.

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This three-part series touches upon various scenarios concerning the extent to which different actors—private employers, state governments, and the federal government (acting as regulator and employer)—can compel their employees or private citizens to receive a COVID-19 vaccine. Putting aside moral considerations and examining only the legal ramifications, it becomes clear that these scenarios represent a complex web of conflicting legal and human right principles. Such principles include: What is the role of various government officials in a federal, democratic republic like the United States? Whose rights are at stake—the individual’s liberty to make his/her healthcare decisions or the collective right of the public to a safe environment? What additional circumstances—such as religious freedom or medical need—change the calculus? Do these questions depend on who is paying for vaccines and protective gear? The coronavirus pandemic has challenged the world to rethink human rights principles in fundamental ways, but whether we are able to meet those challenges remains to be seen.



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