Last week, President Biden issued several directives concerning mandatory vaccination. The directives continue a long tradition of using employers to enforce government mandates of all sorts.
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.
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 Oct. 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, and it is likely to be held that the President has this authority.
We should, however, expect conflicting judicial decisions as the matter works through the courts.
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 these employers to require employees to be vaccinated or submit to weekly COVID-19 testing. 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.
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, and further 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.)
Tammy C. Woolley is senior counsel in the Opelika office of Constangy, Brooks, Smith & Prophete, LLP, and can be contacted at email@example.com. This article is adapted from a post on Robin Shea’s blog Employment and Labor Insider written by my colleague William A. “Zan” Blue, Jr.