Friday, September 10, 2021

Biden issues employer vaccine mandates - can he do that?

Federal vaccine mandates incoming! The AP reports this as:

President Joe Biden on Thursday ordered sweeping new federal vaccine requirements for as many as 100 million Americans — private-sector employees as well as health care workers and federal contractors — in an all-out effort to curb the surging COVID-19 delta variant.

I'm still working my way through the details, which is proving more challenging than I anticipated. 

Federal Employees

I did track down the executive order that covers federal employees. That's pretty straightforward: 

Each agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.

Federal Contractors

The executive order for federal contractors is not so simple. Pres. Biden doesn't even mention vaccines. Instead a Federal Workforce Task Force will issue Task Force Guidance by September 24, 2021. Magic 8-Ball, will there be vaccine mandates in that guidance? 8-Ball says, "it is decidedly so."

Private Employers

Unless you're the average Twitter user, you are probably aware that the president can't just unilaterally create laws - Article I of the Constitution created a legislative branch to make laws. So, how will Pres. Biden pull off a private employer vaccine mandate?

I think this document gives us the blue print: Congressional Research Service report on Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19. To be clear, the doc is specific to an emergency standard for healthcare workers, but I think you can extrapolate the premise to private employers generally. 
The gist is that OSHA includes a General Duty Clause, which requires employers to provide a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees." And, employers must abide by standards promulgated by OSHA (the Administration - I hereby renew my objection to using OSHA as the acronym for both the Act and the Administration!). 

In turn, OSHA can implement an Emergency Temporary Standard upon determining that:
  • that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and
  • that such emergency standard is necessary to protect employees from such danger.
The ETS is then subjected to notice and comment (and the general rulemaking process), but remains in place until superseded by a permanent standard. The validity of the ETS may also be challenged in a U.S. Circuit Court. 

I can guarantee there will be litigation. Magic 8-Ball will a court strike down the mandate? "Reply hazy, try again." I don't purport to be an expert on the validity of OSHA standards, but my gut tells me that this seems like an overreach. We'll see though. 

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